University of Political Sciences

Chirica Mirela Victorita

Spanish Constitutional Reform - the regime of the

Autonomous Communities

Conf. Dr. Ioan Stanomir

2007

1
SUMMARY

INTRODUCTION……………………………………………………………………….......3

The evidence of power devolution………………………………………………………........3

Comparing the Spanish context with other European cases of administrative division…........4
The right to self-determination in international law………………………………………......7
Spanish particularities or how the right to self-determination is employed by an autonomous
community to enhance its competences……………………………………………………....7
Constitutional reasoning……………………………………………………………………....8
The paper hypothesis……………………………………………………………………….....9
Methods of study……………………………………………………………………………...11
Introducing the metamorphosis of the territorial pattern of the Spanish autonomic state……11
The constitutional reform…………………………………………………………………......13

CHAPTER I

Comparing Spanish and British systems enabling constitutional reform and paths for reducing
the interethnic
tensions…………………………………………………………...........................14

CHAPTER II

The Spanish autonomic state- diversity……………………………………………………....17

2.1 Differential features within The Spanish autonomic state……………………………......18
2.2 Territorial organization…………………………………………………………………...19
2.3 The Central State Administration
………………………………………………………...20
2.4 The Regional Government………………………………………………………………..20
2.5 Jurisdiction ……………………………………………………………………………....21
2.6 The Local Government of the autonomous communities is made out of Municipalities
and Provinces
……………………………………………………………………………………..22

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2.7 The Municipality …………………………………………………………………………23
2.8 The Province …………………………………………………………………………..…23
2.9 The constitutional significance of the statutes....................................................................24
2.10 The science of constitutional law in solving territorial conflicts......................................25
2.11 How departed the autonomic state- the difference between an unitary state and a federal
one ................................................................................................................................................
..25
2.12 Where would we situate the autonomic state in both types of state: more unitary or more
federal? And which is the main feature of the current autonomic state?..................................26
2.13 The construction of the autonomic state in phases...........................................................26
2.14 Federal elements...............................................................................................................28
2.15 Competencies....................................................................................................................28
2.16 The financial reform.........................................................................................................29
2.17 Differential features..........................................................................................................30

CHAPTER III

The reform of the Catalan statute..............................................................................................32

3.1 The autonomic state -differential features- the proposal of statutory reform of the
autonomous community of
Cataluña ............................................................................................................32
3.2 Juridical backup- the autonomic opportunity under the mark of the constitution..............33
3.3 The constitutional path reached to ensure the legal bases for the current reform of the
statute in incipient
form............................................................................................................................34
3.4 The political negotiation previous to the proposal for
reform.............................................35
3.5 The proposal of reform of the Catalan statute.....................................................................39
3.6 The constitutional procedure followed for the adoption of the proposal of reform in
General Courts of the Spanish state and in the
Senate............................................................................41

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3.7 The content of the constitutional text of the Statutory Reform of Cataluña.......................46
3.8 Identity: Origins of the Catalan language...........................................................................47
3.9 National singularity and the definition of Cataluña............................................................48
3.10 Recuperation of competences...........................................................................................49
3.11 The Generalitat’ competence into Justice.........................................................................51
3.12 Competence on immigration... ...................................... ..................................................52
3.13 Approval of new institutions ... ...................................... .................................................52
3.14 Infrastructural amendments... ...................................... ....................................................53
3.15 El Prat concesion ... ...................................... ...................................... ............................54
3.16 Identity: The concept of nation –taken to the limits because of inexistent real public
policies to enforce; idiomatic and institutional
rigidity...........................................................................56
3.17 State legislation versus Catalan statute
legislation.. .. .......................................................58
3.18 Electoral
convenience .... ............................................................ ......................................58
3.19 The Moncloa political
pact... .............................................................................................59
3.20 Political perspectives enabling republicanism. Catalan political parties and parliamentary
groups - scopes and
composition... ............................................................................................60
3.21 The autonomic financing of Cataluña- according to the principle of solidarity and
equilibrium (art. 2nd SC) means a just and adequate economic
system..........................................................61
3.22
Predictions...........................................................................................................................65
3.23 Market unity,
bilateralism .... ..............................................................................................66
3.24 Declaration of the government of
Cataluña... .....................................................................67

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3.25 The preparatory campaign prior to the referendum-one month before (May
2006)...........67
3.26 The Referendum: convocation and results or the advance of the autonomic
Spain............68
3.27 Recourses of unconstitutionality brought to the newly enforced statute (the Organic Law
6/2006 of the reformed statute of Autonomy of
Cataluña)..........................................................70
3.28 The entering into force of the new
statute...........................................................................73
3.29 The most ambitious statute of all the
times.........................................................................74
3.30 The 1979 statute of autonomy of Cataluña/ 2006 statute of autonomy of
Cataluña...........74
3. 31 The definition given to
Cataluña.. .....................................................................................74
3.32 The languages of
Cataluña.... ............................................................................................75
3.33 Rights, duties and guiding
principles..... ............................................................................76
3.34 In local and territorial
organization.... ................................................................................76
3.35 The judicial
power................... ..........................................................................................77
3.36
Competences…………......................................................................................................78
3.37 The relations with the other autonomous communities, the state and the European
Union.........................................................................................................................................79
3.38 Financing..........................................................................................................................81
3.39 The possibility of reform..................................................................................................85

CHAPTER IV

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 State
consolidation.................................................................................................................85
4.1 Consolidation of the autonomic
state.. .................................................................................86
4.2 Transition and national
sovereignty..... .................................................................................86
4.3 An advance for the plural
Spain.... .......................................................................................88
4.4 The end of
pluralism.............................................................................................................89

Abbreviations and Glossary of

terms............................................................................................91
BIBLIOGRAPHY........................................................................................................................

105

INTRODUCTION

6
 The thematic area of this paper corresponds to that of compared politics field,
as consequence the subject identified for study concerns the state organization; the case
taken into consideration studies the Spanish autonomic state unity, meaning the particular
form to divide power and decision-making both at central and local level, neither being a
federal nor a unitary one, but with a autonomic type of organization, that of 17
autonomous communities.
Beyond the descriptive character of this paper with reference to the Spanish
state organization it is analyzed in depth the process of power devolution, reached on the
way towards a democratic conciliation, by constitutional attempts to extend the threshold
of competences attributed to the community, as a measure to proximate the citizen to the
administration of the community it makes part of and in the same time a way to limit
state control. In fact this consists the outstanding issue of the paper in case, we speak
about the Catalan proposal to reform their autonomic statute.

The evidence of power devolution

The significance of devolution in the constitutional meaning results from the

transfer of prerogatives to regions without diminishing the full sovereignty of the state,
the authority is disseminated in a number of regional authorities. Through devolution of
power process it is gained more autonomy at regional level by the creation of separate
regional assemblies. The power is not devolved to the citizens but to the assembly that
devolves the will of the people of each region. A number of prerogatives are retained by
the central government but recognizes to the regions a number of administrative and
legislative tasks to the regions. The devolutionary process is a controlled process within a
conflict between a region and the central law, the national level prevails.
Regionalization is the effect of power devolution, the tendency to create
regions, administrative entities with local power of decision; in states where the tendency
of scission from the national state exists or at least claims for a greater regional power of
the authorities the option towards asymmetric regionalization is a political compromise.
Spain took preemptive action against nationalist tensions as to avoid potential
bursts of secession it chosen to qualify the state as unitary and sovereign, but to transfer
power to the regional level, "historical communities" such as Cataluña, Galicia, and the
Basque Country enjoy more power than other autonomous communities, due to their
historical distinctness and privileges granted earlier as to appease nationalist leanings
(aspects similar to the case of the South Tyrol in Italy as well). Andalusia also enjoys a
special status only that it acceded to the degree of autonomy much difficult, in practice
Navarra, Canary Islands and Valencia enjoy a level of power similar to the above
mentioned communities. The remaining eleven communities of Spain adopted an
ordinary but satisfying status of autonomy1.
1
Juan Jose Solazabal, “Spain: federation in the making?”, page 391.

7
 People remain within the national state, they are acknowledged, and the state do
not resorts to military force but resorts to legal action and devolves power to the region,
so the national unitary policy of the state is maintained. The nation is dually represented,
both at central and local level. Making reference to the Spanish state, it ranks in between
it is a unitary state but with an autonomic administrative organization.
Envisaging the territorial and administrative organization of other Western
states, being federal or Unitarian states2 as organization we say that Spain reveals
different features, those of the autonomies. States like Great Britain, France, Germany,
Italy and even Rumania3 and Czechoslovakia dealt with rises of autonomy of the
minorities, attempts of scissions and rigid ideas for separation.

Comparing the Spanish context with other European cases of administrative division

The vertical division of power takes form either through federalism of through
decentralization. Among federal and unitary states there is a crucial variation, differing
from state to state particularities. “Federal states maintain a constitutionally established
vertical division of powers among federal and federated entities, while unitary states
possess no such entrenched division of powers to apportion responsibilities among
various levels of government”4.
If deepening the forms of federalism we encounter the following division: a
type of federalism of integration and one of devolution, within the first type enters the
case of United States of America and Switzerland and for the second we have the cases of
Canada, Belgium and Spain5. In the following the vertical division of power in various
states will be described.
Germany is defined in the political administrative organization as a federal
republic composed by 16 lands. The role of the German constitution (adopted in 1949 by
the German assembly) is to represent the nation –on cooperative federalism bases- it
creates a link between the federations and the state by dividing powers between states and
the federal government6.
In the United Kingdom, a unitary state as such, the case of Northern Ireland
(composed at its turn by six counties and 5 settlements with city status), still part of the
United Kingdom is confronted with the Irish nationalism, a political movement claiming
for more autonomy or the independence of Ireland from Great Britain7.

2
http://www.britannica.com/eb/article-22076/constitutional-law
3
http://www.eliamep.gr/eliamep/files/Romania%20state%20of%20art_revised.pdf
http://www.greekhelsinki.gr/pdf/cedime-se-romania-hungarians.doc
http://www.edrc.ro/docs/docs/Maghiarii_din_Romania.doc
4
James Madison, “Federalist no. 10” in Madison, Hamilton and Jay, “The federalist papers”, p. 350.
5
Ken Lenaerst, ‘Constitutionalism and the many faces of Federalism’, American Journal of Comparative
Law, 38, 1990.
6
http://www.britannica.com/wdpdf/Germany.pdf
7
http://www.britannica.com/wdpdf/Ireland.pdf
http://www.britannica.com/eb/article-215689/Northern-Ireland

8
 Belgium is a federal parliamentary democracy under a constitutional monarchy;
it is divided in 3 regions (Brussels, Flemish and Walloon), 10 provinces with three levels
of government (federal, regional and linguistic communities -Dutch, French and Flemish)
with a complex division of responsibilities since 1993 constitutional revision (the fourth
successive reform8 of the status of the Belgian state) that furthered the devolution in the
actual form of the federal state –the Kingdom of Belgium9.
In Switzerland the federal constitution of the Swiss confederation sets for each
of the 26 cantons10 the adoption of a constitutional statute (not contrary to the federal law-
section 4-federal guarantees, art. 51.2 of the Constitution 11), each canton is seen as an
autonomous unit (art. 47 of the Swiss constitution); federal law prevails over cantons law;
the Swiss political organization is one of direct democracy.
The federal republic of Austria is a parliamentary representative democracy
divided in 9 federal states (each one divided further on in districts, municipalities,
localities12) who detains distinct legislative authority separate from the federal
government in the virtue of the Federal Constitution of 192013.
Italy is a unitary state, its territory comprises two independent states Vatican
and San Marino as enclaves, its administrative divisions are made out of 20 subdivisions,
5 out of these enjoy a specials autonomous status, article 116 of the Italian Constitution
contemplates that five of the 20 Italian regions shall benefit of particular conditions of
autonomy. These regions are: Sicily, Sardinia, Trentino-South Tyrol, Friuli-Venezia
Giulia and Aosta Valley14. The region of the South Tyrol enjoys a greater degree of
autonomy; the German speakers of this region are guaranteed special rights 15. Italy opted
for a regional state in its 1947 constitution16.
The Vatican state is a small sovereign and independent state consisting in an
enclave within Rome, Italy; actually Vatican represents the territorial residence of the
Catholic Church, the only religious institution in the world having access to diplomatic
relations and interest in international law. The Holy See on the international scene is
justified by the supreme authority of the Catholic Church, it enjoys an international
juridical status and therefore presented as a - sovereign and independent moral authority
- takes part in international relations17.
Rumania has dealt with rises of autonomy from the Hungarian, Secuian and
Ukrainian minorities from Transylvania on cultural, identity, historical bases with
8
Robert Senelle, “The reform of the Belgian State”, pages: 381-384.
9
https://www.cia.gov/cia/publications/factbook/geos/be.html#Govt
http://www.crwflags.com/fotw/flags/be-adm.html#scr
10
http://www.about.ch/administration/index.html#CH_Admin_Divisions
11
http://www.admin.ch/org/polit/00083/index.html?lang=en
Federal Constitution of the Swiss Confederation (as amended until October 15, 2002) in PDF.
12
http://www.statistik.at/fachbereich_topograph/tab2_englisch.shtml
13
https://cia.gov/cia/publications/factbook/geos/au.html
14
https://cia.gov/cia/publications/factbook/geos/it.html
15
http://www.provincia.bz.it/english/default.htm
16
Seen: Sergio Bartole, Regionalism and Federalism in the Italian Constitution, 1998.
17
http://www.vatican.va/roman_curia/secretariat_state/documents/rc_seg-
st_doc_20020422_tauran_en.html

9
political claims of administrative and territorial autonomy, practically willing the draw of
new borders within the Rumanian state, so a sort of state within state, meanwhile the
rights of the minorities after 1918, cultural, identity and representation rights have been
recognized and guaranteed by the Rumanian constitution since 1923, during the
communist period and again stipulated and protected by the Romanian constitution of
1992.
The Romanian constitution limits revisionism in certain aspects: the unity of the
state, the territorial integrity and the national sovereignty (contained in the articles 1, 3,
30, 50 and 51 of the Romanian Constitution of 1992), so in Romania the drive towards
federalism is purely unconstitutional, it removes the legal previsions from the
Constitution that leads to federalism- acknowledgement of other nations which is
different from recognizing local autonomy18.
Czechoslovakia’s dissolution into the nations of Slovakia and the Czech Federal
Republics was effective after January 1st, 199319. The Czech Republic is divided into 13
regions with the capital city at Prague further subdivided into 77 districts20. Slovakia is
subdivided into 8 regions that enjoy a certain degree of autonomy since 2002. Their self-
governing bodies are referred to as Self-governing (or autonomous) Regions21.
The Russian federation provides at least a de jure example of a union of 15
federative socialist republics with a certain degree of autonomy. The veridicity of the
Russian federation is contested by many as long as since 2004 governors of these
autonomous regions are directly apointed by the president of Russia, no matter if they
were previously elected by popular vote, also there is a constraint in the veto power of the
local parliamnets which if vetoing a decision the parliamentary corpus must be disolved 22.
Spain is composed by fifty provinces (provincias) grouped into seventeen
autonomous communities (comunidades autónomas), in addition to two African
autonomous cities (ciudades autónomas) (Ceuta and Melilla). These autonomous
communities enjoy a wide legislative and executive autonomy, with own parliaments and
18
Renate Weber and Gustav Molnar, Problema transilvana, The Transylvanian Issue, ed. Polirom, 1997.
http://www.rmdsz.ro/script/mainframe.php?lang=eng
http://www.edrc.ro/docs/docs/Maghiarii_din_Romania.doc
Tofic Islamov, Problema Transilvana, “Scrisoare catre Petre Roman”, The Transylvanian Issue, Letter
addressed to Petre Roman (translated), in Provincia, October 2000, page 4.
http://www.provincia.ro/pdf_roman/r000115.pdf
http://www.adevarulonline.ro/2006-10-09/Politic/consiliul-secuiesc-anunta-referendum-neoficial-pentru-
autonomie_201283.html
Newspaper Adevarul, article Parchetul, chemat sa potoleasca dorinta de autonomie a maghiarilor,
Prosecutors Office charged to ease Hungarians will for autonomy, Author: Mirela Luca, Date: 29 Apr 2003
http://www.zf.ro/articol_24200/parchetul__chemat_sa_potoleasca_dorinta_de_autonomie_a_maghiarilor.ht
ml
The project for autonomy made public by the Secuiesc National Council on 14 of November 2003.
http://www.divers.ro/cgi-bin/buletin_ro.py?id=142#134u l e t i n _ r o . p y ? i d = 1 4 2 # 1 3 4 0 3
19
http://www.answers.com/topic/dissolution-of-czechoslovakia
20
http://www.answers.com/topic/czech-republic
21
http://www.answers.com/topic/slovakia
22
Jeffrey Kahn, „Federalism, Democratization and the Rule of Law in Russia”, Oxford University Press,
2002.
http://www.questia.com/PM.qst?a=o&d=110052733

10
regional governments. The distribution of powers differs according to each community,
as laid out in their "autonomy statute" (el estatuto de autonomía). There is also a de facto
distinction between "historic" communities (Basque Country, Catalonia, Galicia, and
Andalusia- who initially received more functions23) and the rest24.

The right to self-determination in international law

The United Nations Declaration concerning the right to self-determination of

nations all over the world stipulates within the resolution 1514 (XV) of 14 December
1960 emited by the General Assembly as piece of International Law, with universal
availability on the bases of the UN charter reaffirmation of Human Fundamental
Rights, the Declaration on the Granting of Independence to Colonial Countries and
Peoples „affirming that peoples may, for their own ends, freely dispose of their natural
wealth and resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and international
law, believing that the process of liberation is irresistible and irreversible and that, in
order to avoid serious crises, an end must be put to colonialism and all practices of
segregation and discrimination associated therewith...”25. This norm highlights the
bases of legitimacy of a self-determiantion requisit coming from the part of a nation,
minority or state, where does it exist of course.

Despite the existence of this norms we still keep the coordinate that states
have to decide upon other states’destiny if giving them or not recognition as being
legitimized to fight for self-determination (what comes into my mind as example is
that of the Chechens rebelion).

Spanish particularities or how the right to self-determination is employed by an

autonomous community to enhance its competences

The preamble of the Catalan Statute Proposal from the 3rd of October 2005
claimed for the Catalan nation the ability to self-govern the Catalan territory in order to
provide the institutional system of the Generalitat proper to a democracy based on
23
Including the ability for regional presidents to choose the timing of the regional elections (as long as
happens at most 4 years apart).
24
http://pedagogie.ac-toulouse.fr/espagnol/htm/espana/autonomi/index.html
25
http://www.ohchr.org/english/law/independence.htm

11
citizens’ participation in drawing their pattern of rights and responsibilities in the virtue
of the right to self-determination.
Article 4 of the Catalan statute forfeits the right to self government of Cataluña
in the virtue of the statute, of the Spanish Constitution, the European Union, the
Universal Declaration of Human rights, the European Convention of Human rights and
Freedoms and all other agreements and treaties internalized by the Spanish State.
The Spanish case in particular is different especially by the particularities
displayed by the communities, the tendency towards an asymmetrical federalism within
the unitary decentralized state, results to be more and more a forced effort (as there are a
series of competencies conferred to the state and others to the communities) to amplify
competencies and to restore powers 26 back to the local administration of the Autonomous
Community from the State, therefore emphasizes a huge inadvertence with the
democratic process. In order to strengthen my affirmation concerning the Spanish
particularities in terms of differential features in the autonomic state I will focus on
Cataluña’s reform proposal and recent statute, as illustrating case for the particularity of
the Spanish autonomic system.
As there are no pure Unitarian states or purely federal and the world political
map is made out of states whose backgrounds show them to have experienced various
forms of territorial organization, in consequence features proper to both forms, of unitary
state and federal state , are combined as well.
The Spanish case is one much closer and opened to the necessities and volitions
of its citizens, after the Franco’s regime and the years of transition to democracy, the
content of the 1978 Constitution gathers prescriptions that guide the gradual
deconcentration and decentralization of power from the central administration (the State)
towards the autonomous communities.
Spain worth to be analyzed as state due to its particularities, the unity of the
Spanish state is conserved under the symbol of the Crown; it is contemplating as political
form the parliamentary monarchy, despite the autonomic character of the state. As long
as it is a decentralized state, the communities enjoy a large autonomy in competences;
whilst the state keeps its unity through the symbol of the Crown, a unity mostly evident
in the external relations outlook. But for a profound particularity the communities charge
for more representation as community at external level, this challenging proposal, among
others, came from the part of Cataluña with a greater emphasis, claiming in the proposal
for reform of the autonomic statute for a direct representation of Cataluña in its relations
with the European Union, excluding as mediator the Spanish state. In such a situation to
what extent can the unity and integrity of a state extend?

Constitutional reasoning

Our object of study, Cataluña has a status of autonomous community; it is part

of the Spanish state. Its actual status in September 2005 and not only at that time did not
26
The process of devolution of power

12
satisfy the Catalan politics who prescribed a better constitutional future for Cataluña in
terms of competence extension.
What differentiates ETA, the terrorist movement from the Bask Country, from
Cataluña in its attempt to extend competences is the pacific, diplomatic following of the
constitutional steps in the reformation of its statute of autonomy and beyond all stands the
constitutional openness of the Spanish constitution offered to the communities to attain
the desired autonomic degree, this is one of the main distinctive features of the Spanish
constitutional previsions, that of preserving autonomy and moreover providing the means
for a larger autonomy. In the end, Cataluña managed to reform its statute of autonomy
diplomatically, on constitutional bases, respecting the right to autonomy, a right
stipulated in the art. 2 for all Spanish regions and art. 143.2 27 of the Spanish constitution
-the right to autonomy and the access towards self-government in the form of
autonomous communities for ‘regions and nationalities’.
Even if initially the intention was not to transform Spain in autonomous
communities, but to grant the right of self-government to the so-called historic
nationalities, therefore comes included in the art. 151 the historic nationalities who have
previously enjoyed autonomy during the Second Spanish Republic ruled by the Spanish
Constitution of 1931, and these territories were the Basque Country, Catalonia and
Galicia, although this article offered the possibility to other regions or nationalities to
accede to the same level of autonomy if approved on referendum.
Ever since a sort of bandwagon tendency is experienced by the other regular
communities (that acceded to autonomy via article 143 SC in fighting for more power
and budgets, the highest disagreements appear in what tax collection and representation
at institutions of the European Union are concerned.
Cataluña is able to enact legislation for itself- the statute of autonomy is the
basic institutional norm of the community, just like the other seventeen entities but its
requests for broader extended prerogatives are regarded as federal attempts contrary to
the constitution, but also a constitutional device is built to temper such interests and to
provide a non-uniform administrative solution, in a certain extent accepted by the
majority, that of more and more deepened asymmetrical- regionalism.
The autonomous division of Spain is grounded on a social cohesion basics, it
tried through the means of the 1978 Spanish constitution to bring the political decision
much closer to the individual citizen, the pattern developed for the territorial organization
stands to the midway between unitary and federal state 28. It is a pattern of asymmetrical
regionalism, where Cataluña for the moment is the autonomous community with much
power (at various levels) in comparison with the other communities, regional power
conferred by the recently approved statute of autonomy. This is the result of
constitutional gaming to make burst of autonomy to fade away, by deepening the
asymmetries.
For the unity of the state the constitution has conferred the crown the role to
maintain the unity (art. 56.1 SC), the crown as well is impossible to be reformed, in the
27
Article 143 SC contains what the critics of decentralization call caffe para todos.
28
Juan Jose Solazabal, “Spain: federation in the making?”, page 388.

13
same time with the attribute of each autonomous community to extend its competences
under the umbrella of the Spanish state, as long as the federation of autonomous
communities is not permitted (art. 145.1 SC).

The paper hypothesis

The hypothesis is formulated as it follows upon two entities:

- Spain -an autonomic state as form of organization, kept united by the symbol
of the crown- reveals as fundamental norm the constitution of 1978, whose actuality
makes it applicable even three decades afterwards;
- Cataluña -Catalan politicians propose the reform of the statute of autonomy
approved in 1979 in September 2005 within a political negotiation process aided by
juridical/constitutional means (those means contained in the above mentioned norm of
1978); in 2006 the same statute reveals a much evolved layout in terms of adjudged
competences.
- Further lines of evolution.

So in Spain we have legal grounds to keep a state structure together and to also
leave the communities to self-determine their conduct. The country may have not started
with an adequate constitutional framework (especially the inclusion of the participatory
part of the federal formula and the absence of uniformity in the organizational structure
and in the distribution of powers) but with the time it created the ability to work with
mechanisms of co-operation and where possible it encounters the political will to co-
operate, be it on the part of the central government or the local authorities.

How can it realize this without tumbling down all administrative arrangements
and the unity of the state per whole if taking into evidence the claims the new statute
pretends in economic and juridical terms? And what enables such a process in
constitutional phases? We deal with a constitutional text of an autonomic state provided
with solutions for all type of competence requests and the possibility to have a major
change approved as organic law in the statute of a community and to keep on having the
same fundamental norm (the SC) available for the rest of the communities.
The content of the statutes of autonomy can be only actualized or given a
broader interpretation in the mark of the constitution (1st additional disposition of the SC)
according to the social realities but not reformed; any actualization if needed supposes
the ability of the AC to decide upon its administration and to extend competences
attending a juridical procedure, this makes of the Spanish constitution one of the most
equalitarian and opened to changes, even if is the same constitutional text adopted in
1978 and the territorial map of competences has taken a different shape, it is reliable.
The constitutional procedure to reform a statute in Spain is an extraordinary
one, even if is not the German or the American revisable constitutional system, in the
Spanish one the former statute remains available, whilst the reform is incorporated to it

14
via organic law. This is part of a prescribed legislative process to give light to rises of
autonomy on the part of the communities, rises of autonomy that by far would not be
permitted in the form of scissions or separations from the Spanish state they are part of.

The scientific object of my work consists in the description and interpretation

of the constitutional concepts, procedures and basic constitutional texts (articles from the
Spanish constitution, laws, statutes, dispositions) and other measures undertaken for the
statute reform adoption of Cataluña, briefly the constitutional realm permitting such
opening for an AC within an autonomous state from the constitutional point of view.

As a structure of the paper I have set a few mainstreams: to present the

situation of Spain as state in between unitary and federal organization, thereafter the
proposal of statute reformation forwarded by the Catalan politicians, the enrolled
constitutional process and lastly the sequence of the approbation within a referendum at
autonomous level community.

Methods of study

As quantitative methods of research I would classify official and non-official

documents and texts, interviews from books, newspapers and web-sites and therefore the
analyses and interpretation brought to these readings as qualitative method of research.
To assume the methods mentioned to be used in treating the chosen subject I
must cite the Basks’ goal to extend competences and to separate from Spain, attempt
pursuit by terrorists means, whilst the Catalan politicians’ proposal for reform has been
accepted on the agenda and debated up to its approbation, so the outlook of the
constitutional negotiated process is a legal, democratic one. To underline the main
source taken for reference in treating the subject is no other than the Spanish
constitution, besides this one other pieces of legislation like additional dispositions,
organic laws and therefore I will make a great use of the bibliography cited in the area of
compared politics.
The elements that are to be employed in the realization of this work are
provided with a newly character due to the recent date of the event, so I will reserve the
right to cite and interpret texts at the first site that has not been commented yet in books
by authors.

Introducing the metamorphosis of the territorial pattern of the Spanish

autonomic state

15
 In the following we will see how the fundament of the 1978 Charta Magna
(Spanish Constitution) proposed to solve even unforeseen territorial conflicts, all reunited
in the later on famous expression café para todos belonging to Manuel Clavero, UCD
minister of regions at that time, by establishing two ways of reaching the autonomous
shore- a rapid and a lent one (via articles 151 and respectively 143 of the SC). The
consensus cannot be encountered without compromises. Cataluña was the first to
establish the Generalitat as provisional self-government form of the Community on
September, 1977, followed next by the Bask Country. For the same treatment in a chain
effect, the other ACs asked for, having their statutes of autonomy approved. As
aspirations never stop enhancing the same procedure was reiterated by each community
several times, out of these Cataluña becomes more evident throughout the diplomatic
means employed in reaching the shore of competences aspired, characterized by a
permanent sense of willing for more.
Even if not admitted entirely, the economic bias evidences already, the fact that
the finance reasoning stimulates nationalist bursts of autonomy. According to a study on
fiscal balances from 2003 (forwarded with the support of the Institute of Economic
Analysis, published by the Fundacion BBVA and concluded by the valencian
academician on economic investigations, Ezequiel Uriel) we see that all ACs pay fees
and do have necessities, but out of these Cataluña 29 proved to be the most unpleasant with
its high apportion (needed to uniform the minuses of other communities) in fees as quota
to state’ funds, by this generating huge political debates with unpredictable financial
claims. By that moment the Catalan initiative started to work upon a statutory reform,
including among the national claims a financial one (with serious implications if
considering the creation of a Tributary Agency to collect 50% of the fees- a function by
that time assumed by the state at large extent in the virtue of its exclusive competence).
In its way to reform the statute Cataluña raised controversies, most of which around this
aspect, finances, a concern to commensurate within the Council of Fiscal and Financing
Policy of the ACs. The huge concern stands in the fact that if other ACs submit to the
same pattern of Cataluña the entire base of the territorial organization of Spain might fail
to equilibrate a new financing design.
Ever since the 1979 approbation of the Catalan Statute no reform has taken
place, the recent one adopted in 2006 is total and complex. The reason of the “relecturas”,
interpretations given to the statute each time a request of enhancing self-government was
tabled is due to president Pujol’ preference to amplify the self-government of Cataluña
through ordinary norms30.
As mentioned before the character of new subject of this topic is given by the
exact procedure of constitutional reform for the Catalan statute never reiterated before in
29
Where the GDP/capita was -3,90 and the salary/capita was estimated to 12,0 thousand of Euros in 2003,
according to CSIC.
30
These enabled by the influence CiU benefited as governing party in Cataluña for long-run terms in pact
with the central government when votes of the first were needed in the Congress.
Aja, E. “La proposición de reforma del Estatuto de Cataluña”, en López Ramón, F. (ed.) De la reforma
estatutaria, Monografías de la Revista Aragonesa de Administración Pública, Zaragoza, 2006.

16
 almost 3 decades of autonomy, until the 2005 proposition and 2006 adoption of the
statute via the emergency criteria of the article 151 S.C.

Content:

The constitutional reform

The content of this work will be structured in four parts: in a first part a
comparison between Spain and the United Kingdom will be presented regarding the process
of power devolution and the measures taken by the two states to reduce interethnic tensions
are seen in parallel, as long as actions for constitutional reform are considered and accepted
at central levels of decision-making as constitutive part of the well-functioning of the
democratic negotiating mechanisms.

17
 After the completion of this parallel we will focus on the consisting diversity
within the Spanish system, mainly the second part is about the territorial organization of the
Spanish State in depth, especially the vertical division of power with the subsequent
horizontal division of power that derives from it (the Spanish case contains institutions
similar to those of the European federalism, German or Austrian federalism, but the Spanish
case in particular is different especially by the particularities displayed) and in a third part
will be analyzed the tendency towards an asymmetrical federalism which results to be more
and more a forced effort (as there are a series of competencies conferred to the state and
others to the communities) to amplify competencies and to restore powers back to the local
administration of the Autonomous Community from the State, therefore resulting a huge
inadvertence with the democratic process.
Within this third part, in order to strengthen my affirmation of the Spanish case’
displayed particularities; I will integrate the analyze and description of the recent statutory
reform proposal of the Autonomous Community of Cataluña, as illustrating object to
analyze the differential features of an autonomic state.
And finally but not least stands the mechanism and democratic principles
forfeiting communication and functioning between central and local levels and therefore
providing the consolidation of the state per whole. Actually here is where solid participation
of all communities is seen and how the unity of the state is shaped in diversity.

I. Comparing Spanish and British systems enabling constitutional reform

and paths for reducing the interethnic tensions
When emerges the need for power devolution and implicitly for reform?
Whenever the state in case deals with interethnic tensions or bursts of
nationalism, as to solve these out through pacific means, the political negotiation gives out
constitutional solutions to please the ethnic groups. We talk about a political compromise

18
that both, the state and the uprising unity in case, are ready to make as to reduce tensions.
Devolution means granting from the central government to local level. The
difference from federalism stands in the fact that the powers devolved can be temporary,
and that ultimately the central government decision prevails to the local, so the state
adopting such a measure remains de jure, a unitary one.

In making a parallel between Spain and Great Britain from the very beginning we
could say that the second is much more skillful in avoiding secessions and building a
strategy out of the process of power devolution by turning it into a successful mean to
accommodate the intrastate national diversity.
The main difference between Spain and the UK stands in the constitutional fact
that the devolved parliaments or assemblies can be repealed by central government in UK
through an ordinary way; whilst the Spanish constitutional act of 1978 grants the statutes of
autonomy of the communities (this aspect approximates more the Spanish case to quasi-
federalism) and permits the revision of the same through an extraordinary legal way.

The composition of Spain is of 17 autonomous communities and 2 autonomous

cities, for UK we count 3 constituent self-governing countries (Scotland, Northern Ireland,
Wales and England).
Chronologically- in Spain until 1978 resides forms of self-government of the
ethnic communities (of those distinctive nationalities- Catalan, bask, Galician).
After the 1978 moment- the constitutional framework for the state of the
autonomies was set on decentralization bases. The political process emerging the Spanish
constitution of 1978 was in favor of the autonomies (as they have just exceeded the Franco’s
unitary regime) in order to avoid interethnic tensions all communities proclaim their
statutes.
This process of decentralization meant with the time higher and higher
decentralization, each Autonomous Community beneficiates of a statute of autonomy, so
these are controlling each one a share of the total power of the state.

19
 In 2005 Cataluña proposes a statutory reform that is adopted and enforced in
2006, this community for the moment detains a larger spectrum of autonomic competences
then the others, no matter if the Spanish constitution of 1978 provides a symmetric way-out
to achieve autonomy and enhance it, the political layout during the time showed the reverse,
the asymmetric autonomic degree.
From the initially settled competences conferred to both central and local powers,
the devolutionary process evolves; the constitutional openness is not restrictive, it allows the
accumulation of larger competences on the part of the ACs, so we deal with a state of the
autonomies, a quasi-federal model of state.

Meanwhile in the United Kingdom (the most centralized state) without a written
constitution the power is maintained centripetal through the former union embodied by the
Westminster government and national identity recognition of the regions.
In 1997 is tabled and approved the proposal for the establishment of regional
assemblies, the devolutionary process starts and regional assemblies are concluded shortly
in Scotland (1997), Northern Ireland(in 1998), Wales(in 1997).
So Spain since 1978 and Great Britain since 1999 display variants of a composed
state that not at all fits in classic federalisms. In comparing the way the two states devolve
power as to reduce interethnic tensions we observe that both states sought to respond to
different demands for devolution based upon the national identities existing within Spain
and UK through the process of power devolution:
UK stays unitary, despite the asymmetric decentralization process adopted; Spain
also remains unitary but evolves towards quasi-federalism, it got more decentralized, more
autonomous.
The two of them constructed a dual identity, national and regional with similar
leverage. Devolution is seen, beyond being a compromise for the integrity of the state
symbol, as a nearby solution because not all regions are interested or feel to display
nationalist fangs, so the model of granting different degrees of autonomy according to the
wishes pleases everyone, even if in countries like the effect is less controllable and gives

20
attitude to a chain effect of reclaiming enhanced competences.
The 1978 and 1997 moments when power is devolved, these two contexts have
at their very basics a political negotiation process and thinking joined by the parts involved
(the state and the ethnic entities).

But the two states want to preserve their unity: Spain through the symbol of the
Crown, and UK through the treaty of the Union and also through the British Crown symbol.

In what concerns the reasons for devolutionary demands we have:

In Spain- self-government- assuming that the closer is the administration to the
citizen, the more efficient it becomes; as in UK the national identity, the executive
assemblies are given power to devolve the will of the people of each given region.
There is also a difference in what concern the devolutionary content, whilst Spain
devolves competences to the Autonomous Communities, UK devolves power in the form of
nationalist identity assemblies and ethnic recognition to the executive assemblies, in this
way the state keeps its centrality.
The process of devolution initiated in a return of competences towards Scotland
and Gales approved in 1998-1999 has converted Great Britain in an intermediary state
model in between the regionalized and the federal one, it came much closer to the Spanish
case.
As to conclude the way the two states analyzed in parallel have a different
background, a different constitutional tradition, one has a more civilized and disciplinary
way of lobbying (referring to the UK’ party system), whilst the Spanish pressure groups
pursue wildly the political objective they claim. The aims also differ. But the most
important aspect is the outcome, that both states have ensured the unity and stability of their
states no matter the political compromise accepted by granting autonomy and devolving
powers.

II. The Spanish autonomic state- diversity

21
 In the following we launch the issue ‘autonomy, to what extent in the Spanish
case?’
For this a distinction between unitary and federal must be illustrated on the
Spanish state, what means an autonomic state, the way it has been constructed and which
are the federal elements recognized in the Spanish pattern and also the unitary features
keeping it so bound.
As we already know there are no pure Unitarian states or pure federal and that
the political map of the world displays states whose background traditions of territorial
organization have mantled and dismantled various forms of territorial organization, in
consequence it is tried to combine features proper to both forms, of unitary state and federal
state as well.
The Spanish case is one much closer and opened to the necessities and volitions
of its citizens, after the Franco’s regime and the years of transition to democracy, the
content of the 1978 Constitution gathers prescriptions that guide the gradual deconcentration
and decentralization of power from the central administration (the State) towards the
autonomous communities.
The object of our analysis is Spain as state and whose unity, despite the
autonomic character of the state, is conserved under the symbol of the Crown,
contemplating as political form for the Spanish state the parliamentary monarchy. The state
of the autonomies or the autonomic state institutionalized in 1978 was not coming only to
decentralize but was touching more in depth, by this the regions and the nationalities were
catching life for their own. By the 150.2 art. of the SC competences were delegated or
transferred from one entity ( being Spain) to smaller ones (the ACs), what began to be
considered from that moment on the Plural Spain and the mantling of autonomic statutes
posterior to 1978 moment along with the self-determination will began to be felt as an
irreversible fact. The way out towards the state of autonomies was no so easily mantled
supposing debates, controversies, agreements, and the fruits of discord were no others then
the competences the state was willing to cede, some of which seemed to debilitate the state
organizing. Once again the Spanish people offered trusteeship vote of confidence to the

22
newly released form of state.
Almost three decades afterwards this bridge was overstepped another shows up-
the federal claim (a distinct form of organization to the previous) or at least semi-
federalism, quasi federalism, imperfect federalism, asymmetric, federalizing state, plural
national state, state of national communities, nation of nations and lastly associate states, all
these terms are employed when referred to the common patria which is Spain31.
Spain during the 20th century has experienced successively the following forms
of organization: the centralized state (during Restoration), integral state (during the 2 nd
Republic), and strong unitary state (on franquism’ time) and the state of autonomies once
with the democracy and until now when these opened way wideness no-how end. The more
above mentioned definitions for the type of state hides no other attempt then the
independence aspiration as newly independent sovereign states. If Spain or at least Spanish
volitions of the nationalities within the Spanish’ territory urge the creation of a new model
of state, a no-how, of independent entities, that would mean a way back, a reverse, because
this is actually what independency leaves space for involution, as long as the vertebrate of
the same consists in top level centralized decisions concerning all consisting parts, of
searching the common good of all, in the followings we will see where this way (demand
for larger independence) might lead to.

Differential features within The Spanish autonomic state

As for the communities we must consult the constitutional provisions granting

them autonomy, self-government, competences, regional identity, all these embodied in the
corpus of the statutes of autonomy of each of the 17 composing autonomous communities of
the Spanish state.

31
Newspaper El Pais, ¿Otro modelo de estado?, “Another model of state?, by Manuel Ramirez, Political
Law academician in the University of Zaragoza, June, 17th 2005.

23
 Territorial organization

The Spanish Constitution of 1978 managed to promote a continuous and

extensive devolution of powers from the Central State Administration to the Autonomous
Communities; subsequently Spain has become one of the most decentralised states in
Europe, the SC dedicates a total of 16 articles (from 143 to 158 SC) to state territorial
organization. Article 143 SC regulates the virtues of the right to autonomy recognized
within the 2nd article of the same Spanish Constitution.

The principle of constitutional loyalty provides for this form of organization of

the territory the following: the equality of all citizens regardless of the territory in which
they live, unity of the Spanish nation, solidarity among the different Autonomous
Communities and autonomy, meaning the capacity of the different nationalities and regions
to exercise their own powers. The governing competences are distributed between the State
and the 17 autonomous communities. These are divided into three categories:

-exclusive competences over matters in which either the State or the Autonomous
Community in question have full legislative and executive power;

-shared competences over matters in which the State and the Autonomous
Community in question have joint legislative and executive powers;

-concurrent competences over matters in which both the State and the
Autonomous Communities may act as such.

The Constitutional Tribunal has jurisdiction into solving any dispute regarding
the assignation of competences that may arise between the State and the Autonomous
Communities. However, there are also other means of cooperation and collaboration
between public administrations, which help to avoid such disputes. From an organizational

24
point of view, Town Councils are the governmental and administrative institutions of the
Municipalities, while Provincial Deputations are the equivalent bodies in the Provinces. The
Mayor is elected by an absolute majority of votes cast by the Town Councillors.
Furthermore, active and passive voting rights are not limited to Spanish citizens in
municipal elections; all European Union citizens resident in Spain may exercise this
constitutional right.

The Central State Administration

The main task of the Central State Administration consists in applying the central
Government' administrative policy, it is organised into different Ministries (around fifteen)
with headquarters in Madrid, and specific peripheral services throughout the national
territory. The ministries also make use of certain public organisms and agencies endowed
with a considerable level of autonomy.

Attributes like objectivity, impartiality and efficiency of all public

administrations are endorsed by the Spanish Constitution and regulated by a unitary law on
administrative procedure concerned with the well-functioning of the administration.

The Regional Government

The Spanish Constitution proclaims the unity of the nation, indissoluble, whilst it
recognises and guarantees the right to the autonomy of all nationalities and regions that are
comprised in the State of Spain.

These are the 17 Autonomous Communities of Spain: Andalusia, Aragon,

Asturias, the Balearic Islands, the Canary Islands, Cantabria, Castile and Leon,
Castile-La Mancha, Cataluña, Extremadura, Galicia, Madrid, Region of Murcia,

25
Navarran Foral Community, the Basque Country, La Rioja, the Valencian
Community and Ceuta and Melilla who became cities with statutes of autonomy of their
own.

As competences for the Autonomous Parliaments of the Autonomous

Communities are included the following: the election of the president of the Autonomous
Community, the adoption of legislation on those matters that fall under its authority, the
approval of the budget for the Autonomous Community and the control of the action of the
Autonomous Government. A president and a cabinet constitute the Autonomous
Government which exercise all the executive and administrative powers conferred to the
Autonomous Communities.

Jurisdiction

Consequently to the capacity of self-government assigned to the Autonomous

Communities by the SC, these are entitled to structure their own public administrations as
they consider appropriate, provided that these will act within the framework of basic
regulations laid down by the Parliament. The division of powers between the Autonomous
Regions and the Central Government is outlined in Articles 148 and 149 of the Spanish
Constitution.

The matters of exclusive jurisdiction of the Central Government include

international affairs; defence; justice; criminal, commercial and labour legislation; merchant
shipping; civil aviation; foreign trade and taxation; economic planning; finances, currency;
and public safety, among others.

The process of transference of competences taking place in the last three decades
almost has been so far-reaching that Autonomous Communities now exercise full powers in
matters of relevance to modern societies such as culture, education, health, agriculture,
industry, employment policy and infrastructure within their territories. The Constitution

26
recognises the right of the Autonomous Communities towards financial autonomy "for the
development and enforcement of their authority" (art. 156 SC). These Communities receive
direct and indirect revenues from the Central Government and from their own local taxes
and special levies. The Constitution declares that Communities' financial autonomy must be
exercised in coordination with the policies from the Central Government, who is ultimately
responsible for taxation and who guarantees equal opportunities for all citizens, regardless
of the Autonomous Community they reside in.

The relationship between the Central Administration and the Autonomous

Communities are based on the essential principle of cooperation between public
administrations. This is implemented in a series of instruments, such as administrative
agreements, sectional conferences and bilateral cooperation commissions, agencies and
various bodies that debate and decide important issues concerning public administrations.

The Local Government of the autonomous communities is made out of

Municipalities and Provinces

The Spanish Constitution guarantees the autonomy of municipalities; these enjoy

full legal personality and initiative. Their government and administration shall rest in their
correspondent Town Councils consisting of Mayors and Councillors. The residents of the
municipality elect councillors by universal, equal, free, direct and secret suffrage, as
provided for them by the law. The Mayors are elected by the Councillors or by the residents.
There are fifty provinces and more than eight thousand municipalities, with great contrasts
in their population. Only one hundred and eighteen municipalities have more than forty five
thousand inhabitants.

27
 The Municipality

The municipalities have executive powers with regard to a large number of

services, such as social services, transport, sanitation and traffic, the reason being that
municipalities are the public administration that is closest to the citizens. These executive
powers need to be performed within the framework of the legislative powers of the State
and the Autonomous Community, depending on the matter at stake.

The council is elected every four years, and it cannot be dissolved. It oversees the
budget, and it may raise taxes to supplement grants from the Central and Regional
Governments. A Mayor is designated after the local elections from among the Council
members as head of each Municipal Council; a mayor has no limitation in exercising an
infinite number of mandates. In those municipalities of over 5,000 inhabitants, a Municipal
Commission is designated to assist the Mayor in the exercise of his duties. The municipal
administration in such towns is divided into departments and districts, the heads of which
are ultimately responsible to the Mayor.

The Province

The province represents the local entity, it benefits of legal personality, it arises
from the union of several municipalities, is a territorial division designed to carry out the
activities of the State. The General Courts in an organic act must approve any alteration of
provincial boundaries. The government and the autonomous administration of the provinces
is entrusted to Provincial Councils (Deputaciones) or other Corporations that must have a
representative character. The provincial government is administered by a Provincial Council
composed of deputies elected by the municipal councillors from their own ranks. They are
members of the Provincial Council for four years and can be re-elected for as many terms as
they hold the post of municipal councillors. Like municipal councils, the Provincial Council

28
does not have the power to draft major laws. A president elected by the members of the full
council leads each Provincial Council. This president bears the responsibility for the
government and administration of the province.

The Provincial government has a different administration in the Basque

Provinces, the single-province Autonomous Communities, the Balearic Islands, and the
Canary Islands. The Basque Provinces posses certain privileges due to their status as
"historical territories". This makes their provincial councils more powerful than those of the
other provinces. Those Autonomous Communities that are made up of a single province
assume all provincial powers and responsibilities, thereby obviating the need for provincial
institutions. Due to the geographical separation existent within the group of islands, both
government and administration have been entrusted to Island Councils, which enjoy broader
powers than their provincial counterparts32.

The constitutional significance of the statutes

The autonomous communities are the exponents of self-government within the

panoramic view of the autonomic state, through their statutes of autonomy, a heteronomy
norm approved by the General Courts as organic law, whenever the first act as to reform the
text of their statutes, this action cannot be entertained, and therefore enforced without the
consent of the central power, so the same statutes are quasi-constitutions at the level of the
community if compared with the Spanish constitution, the fundamental law of the Spanish
state. So the statutes assume a constitutive function, they have been abrogated after the
formation of the Spanish state, of the Spanish constitution and therefore we can talk about

32
http://www.060.es/sobre_espana/organizacion_territorial/index-iden-idweb.jsp visited on the 24th
of may 2006 at 13:03 hours.

29
prescriptive, organizing and defining statutory clauses.
For the elaboration or reformation of its statute each community intervenes, in
effect there is a constitutional condition that laws of territorial ordering and in general
should display validity in what concerns functions, competences, attributions and faculties
realized by the community within its own statutory text (Organic Law of the Constitutional
Tribunal, article 28).
The initiative to elaborate a statute is regulated in the article 143.2 SC, 148.2 SC
and within the article 151 SC who provides the path of the procedure the juridical text
elaborated by the Autonomous Community has to follow to its promulgation. Such initiative
if not reaching consensus can only be reiterated trespassing a 5-years term (art. 143.3 SC).
LOAPA is the organic law of harmonizing the autonomic process (July, 30 th,
1982) regulating the fact that the statutes cannot be limited by any state law and the
transference of competences is in accordance with the capacity of each community to grow.

The science of constitutional law in solving territorial conflicts

In Spain nationalist tensions are disputed in terms of competencies with identity

and self-government substrata, the actors are the autonomous communities, the organisms
applying the law, the Constitutional Tribunal, and the integral state of law. The outcome is
regarded with such naturalness and normality by the Spanish society and political class who
has such a civilized capacity of integrating new differences resulted out of the political
territorial conflicts. The so-complex ordering in plurality and variety of the constitutional
law in a decentralized, autonomic state shows its utility.

How departed the autonomic state- the difference between an unitary state and a
federal one

30
 Anterior to the principles established by the 1978 constitution, Spain was one of
the most unitary and centralized states from Europe, by the way the elaboration of the
Spanish constitution of 1978 was based on the Spanish people consensus that pushed
forwards through the constitutional opening that the constitution left to the communities in
the virtue of the capacity of self-government, an autonomic process that has been evoluating
and keeps on doing it, so the Spanish state has got to be, during the last 3 decades, one of
the most decentralized state and whose institutional and territorial form of organization is so
similar to that of German or Austrian federalism (we should also take into account the fact
that at the elaboration of the Spanish constitution of 1978 the Spanish politicians of that
time inspired themselves from the German Lands constitutional model in order to obtain
people’ consensus for the constitution).
The difference between a unitary state and a federal one consists in the way
power is divided, in an unitary state the power is concentrated at central level, meanwhile in
a federal one the power is divided on the vertical and the state is decentralized (the central
administration gives competencies to other local different administrations and a channel of
inter-governmental relations is settled).

Where would we situate the autonomic state in both types of state: more unitary
or more federal? And which is the main feature of the current autonomic state?

Is quite a controversial debate this aspect and awakens enough polemics because
the Spanish state has followed a decentralization process that displays features of both types
of state, unitary and federal, is simply an autonomous state whose organization is structured
on two levels: one is the central administration and the other levels are the autonomous
communities. It lacks the articulation of both; it lacks mediatory institutions at the level of
the autonomous community to participate into orienting the system in general. To head

31
towards an entirely federal system would be utopia because of the differences between
communities (meaning huge economic and cultural gaps).

The construction of the autonomic state in phases

A first phase is that of the pre-autonomies (we have the case of Cataluña and that
of the Vasc Country during the 2nd Republic and adding the forms of preexistent self-
government as the Foral regimes, la Mancomunidad or the statutes on the way to elaboration
of Aragon, Galicia, Andalucia) and with the phase of transition to democracy the claims of
regional self-government got amplified, so gets extended, in the form of law decrees
conceded to the communities during the period of transition to democracy (a number of 14
pre-autonomies) the right to self-government.
The so-large elaboration of the Spanish constitution of the year 1978 culminated
with its approval due to majority of the consensus has been reunited by the parts once
included in the constitutional text a large window33 making possible the opportunity of self-
government. Once the autonomy constitutionally regulated it contains two ways of access to
the autonomy for the community: at a first level we encounter an ordinary way that consists
in a juridical procedure that includes the AC in general and takes with less competencies,
whilst at a 2nd level we find a strengthened way of access to the autonomy prefiguring
competencies only for the regions and historical nationalities like the Bask Country,
Cataluña, Galicia and Andalucía. As we can see from a very beginning in bases of the
fundamental norm a certain asymmetry has been shaped, asymmetry that once the time
passed by got sharpened.

33
Affirmation made with reference to that type of constitution opened to all times (‘abierta al tiempo’), in
Eliseo Aja’s book, page 54, citing the German professor K Hesse.

32
 Between 1979 and 1992 has been developing the second phase of construction of
the autonomic state, the phase of the autonomies in which the autonomy statutes gets
approved on juridical bases and the autonomic map is configured (during Suarez governing
are approved the statutes of autonomy).

Starting with year 1992 a third phase in the context of the autonomic Spanish
state is opened , is a phase in which autonomic pacts are reached at the level Spanish state as
central power- Autonomous Community with the perspective to amplify competencies and
a mayor degree of decentralization. Posterior to this date organic laws and sentences of the
Constitutional Tribunal are elaborated to transfer competencies, to reform the financial
system and laws of linguistic normalization.
The bases of the autonomic fond, as the 1978 SC and the posterior approved
statutes of autonomy, display a competence and economic inequality existing between the
AC34. Due to the openings the fundamental norms offers (the Spanish constitution) the AC
that were already enjoying a certain degree of competences and autonomy ask for more then
they already have, whilst those AC that enjoyed less competences and autonomy until that
moment ask for the reformation of their statutes, the augmentation of the competencies or at
least claim for a equality of competencies among all communities35.

Federal elements

34
Spanish territorial organization: http://www.060.es/sobre_espana/organizacion_territorial/index-iden-
idweb.jsp
35
After day 30 of September 2005, when the Catalan Autonomous Community presented its proposal to
reform the statute, as a consequence to its claim several other AC presented the same demand to reform
their statutes of autonomy. It seems to be a chain- reaction generated by the asymmetrical and unequal
initial base of competences.

33
 As the elaboration of the Spanish constitution was inspired from a federal model,
in the following description the federal elements of the Spanish autonomic state are to be
illustrated. At the vertical level we encounter a territorial organization composed by 17
autonomous communities and thereafter the decentralization that derives from this division
at the administration level, institutional, statutes of autonomy, in the degree of
competencies, shared or exclusive for the state or belonging only to the communities, the
financing system and taxes.

Competencies

The competencies possibly assumed by the communities are regulated in the

article number 148 of the Spanish constitution, is a list of matters of which the AC could
assume all or only some of the competencies in terms of exclusivity or in collaboration with
the State. The possibility to do it or not reside in the so-called ‘dispositional principle’,
corresponding to the art. 147. 2 d), that supposes the transfer of all infrastructures of
services additional to each matter chosen from the list as competence. The same elaboration
of distinct statutes, as fruit of a political pact, brought by taking as reference this
dispositional principle a wider basic inequality among communities.
The art. 149 SC regulates the exclusive competencies on the part of the State as
long as in the following art. 150.2 SC it is regulated the possibility to transfer or delegate,
via an organic law to the AC competencies proper to the State.

The financial reform

34
 The constitution at its elaboration found unable the capacity to develop juridical
supports that had to be incorporated once with the time passing by in the form of organic
laws, this opening citing that ‘through organic law could be regulated the exercise of the
financial competences…’ (art. 157.3 SC) left place for interpretations, inequalities, reforms
and conflicts.
After 1980 a Fiscal Policy and Autonomic Financial Council was created as
advisory organ concerning autonomic financial problems, besides this the same financing
organic law for AC prescribes a procedure to reform the system of autonomic financing and
whose articulation ends in a negotiation between the government on one side and the
defenders of the AC on the other side. Neither the above mentioned Council for autonomic
financing and fiscal policy can operate its advisory functions properly as it lacks the
institutional and informational infrastructure that should circulate at the level of political
parties, public opinion and institutions.
As for the claims of the autonomic pacts in financial matters, an efficient
collaboration do not exists at government- AC level (conferring a negative dimension with
respect to the general interest and a positive dimension for the actions of the State, for those
of the AC and for the government instances) and moreover a double interpretation it is
extracted from that federal or autonomic loyalty principle on both parts, the obvious effect
that rises is that of economic disequilibrium among the AC by which effect an incentive is
given to an attitude more discontented and reclaimable on that way of searching the
equality. For example, the book of E. Aja uses a charter 36 to illustrate the tributary and
income differences per capita among Foral Communities and the others with similar
competencies, it can be seen an inequality that produces great controversies on the part of
the citizen.
The LOFCA system is a discriminatory one that relates different constitutional
fees for the Foral Community of Navarra and for the Autonomous Community of the Bask
Country37.
36
E. Aja: page 177.
37
The law of Concert supposes a convention between State and the Foral Community operating a tributary
ordinance especially for the historical territories.

35
 It can be observed that once with the evolution of this autonomic process with the
transfer of competences from the central level to the local one, the AC, it is produced once
more a mayor decentralization of the Spanish state that reduces the percentage of public
costs controlled by the central administration, moreover the control over public expenses
the local administration of the AC and mayor-halls have has augmented what means that the
administration here is much more closer to the citizen as it administrates the mayor part of
their income38.

Differential features

What actually differentiate Spain from real federalism are the centralized
juridical system and the organization of the Senate as a copy of the Congress, if we are to
look at the content of the constitution (the art. 69.1 SC) for this camera we conclude in this
aspect a rupture of democracy because the Senate is not a territorial representation camera
as it supposes to be, so the ACs get to be represented at the Congress’ level by the
representatives they have and in this aspect the democratic rupture produces (imperative
mandate in exchange of a representative one) because there in the Congress the citizenship
should be represented at national level, not the interests of their community. As a
consequence of this aspect the General Commission of the ACs has been created to develop
the real functions of a Senate, in miniature, but following the art. 69.1 SC.

The crossing-point between communitarian law and autonomic law establishes a

competencies triangle at the level of the European Union, the Spanish state and the ACs that
in the descendent phase is the EU that elaborates norms and directives that thereafter inflicts

38
Following the J. Valles’s concept (in the book of Political Sciences, the chapter concerning the territorial
organization of the state) Spain is compared with Austria in terms of recourses administration at the central
and local level and the conclusion it gets to is that in Spain the local administration benefits of more control
over public expenses in comparison with Austria, a federal state.

36
in the Spanish state and ACs ‘ legislation conforming to the residing competences after the
case. The application of the European norms is fulfilled but when it gets to the ascendant
phase, that of elaborating norms, as the relation EU- ACs is precarious a failure 39 is
generated.

The competence inequality between ACs constitutes another differential thing.

The articulation of the autonomic state- once started the competence devolution process to
the ACs and exerting ones of the initial inequalities, these continue and moreover prejudice
the system, posted that with the right to autonomy, this constitutional opening concretizes
and develops the Autonomic State via a large process, not yet finalized. To the state are
corresponding a series of competences, to the ACs others, each time the dynamic of
reforming statutes and augmenting competences is generated it is done in the basis of that
dispositional principle in which resides the constitutional means to justify the desire of
receiving autonomy, but this principle functioned at the very beginning of the process of
autonomic devolution and by the time the degree of desired level of autonomy has been
reached, meanwhile the same dispositional principle keeps on being implied when comes to
reclaim a competence augmentation or a statute of autonomy reformation; that means that
the concept of autonomic devolution got larger and larger in its contents and the logical
question that comes to us in order to reflect over the claim of competences’ augmentation:
as long as the competences requested to the State to cede at the ACs are quantitatively
limited, where this autonomic devolutionary process heads to in the end?

Coming back to the fact that the Senate is not a Camera of territorial
representation of the ACs in the way the SC prescribes is another differential feature of the
Spanish autonomies. Under the period 1994-1999 a project to reform the Senate is
elaborated with the finality, in the end unrealized, to put in functions the Senate according to
39
The actual proposal of reform of the Catalan statute of autonomy it is heavily reclaimed the articulation
of the positional competence-that of participating and representing the interests of the community in the
relation with the European Union and with the communitarian instances no matter if by Law 2/1997 a
Conference for Affairs Related with the ACs , a Committee of the Regions (EU) and other international
forums with the purpose of articulating the participation of the ACs.

37
the normative of the constitution. This gives the thinking that there may be a failure in
making effective the decision, meanwhile it is consciously aware that of empowering the
ACs with a forum of participation in the autonomic state is indispensable necessary for the
good institutional and relational efficiency at the level of government, administrations,
Congress and ACs.

In profound is prepared the brief description of the proposal of the Catalan

politics to reform their statute of autonomy and the evolution this one had and also
incorporated additional personal reflections over the differential features this case fits into.

III. The reform of the Catalan statute

Further on I will illustrate on the Catalan case of statutory reform what means a
making and remaking of the plans of the Catalan regional nationality within the Spanish
nation, an obvious example of the constitutional effort of the state to devolve autonomy as
to avoid interethnic tensions that might rise in effect to a refusal.
The constitutional path of this aspect is to be taken into consideration from the
origins up to its enforcement and also the political process of negotiation (the role of the
opposition in power) that puts into debate the attributes of a nationality not fully
appreciated to the extent it is exploited. I find very important here the role of the democratic
institutions enabling democratic conciliation of all parts involved in the process of reform.

38
 The autonomic state -differential features- the proposal of statutory reform
of the autonomous community of Cataluña

Juridical backup- the autonomic opportunity under the mark of the constitution

The Spanish constitution of 1978- supreme norm of the Spanish state-

contemplates for Cataluna along to other ACs (the transitory disposition nr. 2 in the art. 143
SC) the fact that they can accede to the maximum degree of autonomy following a
simplified procedure40 (the way has been plebiscite in the past an autonomic regime 41- under
the constitution of 1931).
On this article Cataluña relied aiming to expand the competence degree conferred
by the constitution according to the progress and the social realities. Chapter 3 of the SC
opens accesses to the autonomic competence devolution but also opens controversies in
what supposes the model of state contemplated- parliamentary monarchy- as symbol of
unity of the Spanish state and which ‘in no case would admit the federation of autonomous
communities’ (art. 145. 1.SC). The statutory system of competence distribution is completed
by one extraordinary prevision regulated in the art. 150 SC, 2 nd paragraph, according to
which the precept of the state ‘can transfer or delegate faculties correspondent to matters of
titular state which by its naturalness are susceptible of transference or delegation’, a

40
I have consulted the ‘Informe sobre la Reforma del Estatuto’, Generalitat de Catalunya, Coordinator Dr.
Antoni Bayona, Institute of economic studies, 2003, for further information about the ordinary and
simplified procedure, pages 206-207.
41
The preamble of the proposal to reform the statute of autonomy of Cataluna relies on the bases of
legitimacy and historical permanence mentioning that from the year 1774 efforts are concerted to
recuperate the self-government institutions and following the historical itinerary it specifies the
Mancomunicat from 1914 and the establishment of the statutes of the years 1932 and that of the year 1979
in which the volition of Cataluña to exercise its unalienable right of self-government is settled.

39
principle of which came to make immediate use Cataluña (and other communities),
equalized from the beginning as communities of 1st degree.
The Catalan statute of autonomy got approved in 1979 according to organic Law
4/1979, date 18th of December (even if the autonomy of Cataluña was reestablished
provisionally by the Law-Decree from 29th of September 1977 a pact between president
Suarez and the president of the Generalidad J. Taradellas 42). Each change trespassing the
date of the official approbation of the Catalan statute in 1979 has been approved in the
General Courts via organic law and was not considered statutory reform 43.

The constitutional path reached to ensure the legal bases for the current
reform of the statute in incipient form

On the bases of the regalement elaborated by the congress of deputies for the
congress chamber in 2002 title V- concerning the legislative procedures, the 3rd chapter-
with reference to the special legislative procedures, section 3- for the statutes of autonomy it
is followed an ordinary procedure for the proposal of reform to be accepted on the agenda of
the congress (art.136 of the congress regalement), thereafter conforming to the art. 151SC
exist a disposition providing the constitutional steps and procedures followed by the reform
text within the congress up its sending to senate, containing all potential judiciary recalling
of the text as to comply with other political groups and interests 44. In this time period, also
stipulated by law and respected by its applicants, temporary entities for constitutional and
decision analysis are constituted; all changes are notified to the demanders (which is the

42
E. Aja: page 47.
43
Taking into account the law 17/2002 from the 1st of July concerning the regime of cession of tributes to
the state, establishing the quantum and further conditions of the above mentioned cession that modified the
paragraph 1 of the 6th additional disposition of the Statute and which was not considered statutory change
and neither requested an organic law to be established, as self disposes the proper additional disposition
cited.
44
Marsal, Marc “Recensió jurisprudencial sobre la reforma de l’Estatut d’autonomia de Catalunya”,
Revista Catalana de Dret Públic, nº31, 2005 pp.203-218.

40
Catalan parliament). According to the art. 151.2 SC art. 144 and 145 from the congress
regalement is specified the role of the president of the chamber to communicate the
approbation of the statute in the senate, therefore the text is sent back to the community to
be ratified by referendum in Cataluña and finally a debate takes place in the congress again
to take notice by vote of the entire change of the norm at totality, with implications at other
levels. Finally in the BOE (Spanish official bulletin) appears the reformed text of the statute
of autonomy of Cataluña, remitted according to the constitutional norms existent and
approved through organic law(the extraordinary constitutional procedure)45.

To resume the basic procedural steps passed by the constitutional norm of reform
I have structured them as it follows:
1. The political negotiation previous to the proposal for reform of the statute of
autonomy of Cataluña
2. The proposal of reform of the Catalan statute
3. The constitutional procedure followed for the adoption of the proposal of
reform in the General Courts of the Spanish state and in the Senate
4. The content of the constitutional text of the Statutory Reform of Cataluña
5. The Referendum: convocation and results
6. Recourses of unconstitutionality brought to the new enforced statute and
finally 7. is a comparison of content between the 1979 statute of autonomy of Cataluña and
the 2006 reformed statute of autonomy of Cataluña.

45
Ferret Jacas, Joaquim “Estatuts d’autonomia: funció constitucional i límits materials”, Statutes of
autonomy: constitutional function and material limits, Revista Catalana de Dret Públic, nº31, 2005 pp.87-
108.

41
 1. The political negotiation previous to the proposal for reform46

Inside the Catalan tripartite government the incentive towards reform was given
by the Counselor Joan Saura (ICV) and also supported by March 2004 elections in which
the central government was now held by PSOE, with Zapatero as president, this has given a
way to elaborate criteria for the initial text of reform, on the 6 th of May 2004 Viver (invested
director of IEA and former magistrate and vice-president of the T.C.) proposed to orient the
reform text as such: by fragmenting and protecting competences to the highest limit the law
permitted and even to treat state’ intrusion in certain areas exclusive for the Catalan
community as invasive47.
In August 2004 the creation of the group of Ponencies for the statute is brought
to an end in the Catalan parliament and government. IEA – the autonomic studies institute
elaborated the texts who have served as basic to the parliamentary debate. The target was to
get to the maximum limit the constitution allows in competencies profoundness (matters and
sub matters) and mostly to assure that the process of progressive emptiness of the latest 25
years would reiterate, for this argument the delegation of competences via article 150.2 of
the constitution was applied48.
In May 2005 the hard working group of the ponence ended the first lecture of the
text in complicity with government departments. The incentive for a statute reform proposal
came from the socialist governing party who at the very formulation of the text it tried to
use all possible biases necessary to adjust the text to the constitutional margins maintaining
46
Newspaper “El pais”, article: La reforma del estatuto Catalan- estatut: callejon sin salida o calle mayor,
“the statutory reform- statute: off-road or a large way out” by Ernest Maragal (member of PSC), page 20,
spain, August 13, 2005.
47
Viver Pi-Sunyer, Carles “En defensa dels Estatuts d'autonomia com a normes jurídiques delimitadores de
competències. Contribució a una polèmica juridicoconstitucional”, Revista d'Estudis Autonòmics i Federals, nº1,
2005 .

48
Albertí, Enoch “El blindatge de les competències i la reforma estatutària”, Revista Catalana de Dret
Públic, nº31, 2005 pp.109-136.
Viver Pi-Sunyer, Carles and others, “La reforma de los Estatutos de Autonomía. Con especial referencia al caso
de Cataluña”, The Reform of the Statutes of Autonomy. With special reference to the Catalan case, CEPC,
Madrid, 2005.

42
the constitutional ceiling of compacted ambition of all political groups. These biases were
supported also by the popular party of Cataluña and CiU –ERC.
On 1st of July of 2005 at the point of ending the second lecture the debate was
getting denser and more difficult directed towards text compaction using clauses of
guarantee to blunder the chapters49.
Each party was defending an aspect of policy as such: the CiU had the flag of the
unviable autonomic concert, PSC defended the constitutional federalism and it also shared
the financing proposal with the ERC and ICV, so the way out of the blockage situation to
find out a dignity exit with mayor agreement was to inscribe the statute with a visible
apostate of Catalan sovereignty50. The ponents job was mainly to converge these mains aims
of the parties as to contribute to the success of the statute reform proposal in the end, along
with the federal mutual trust and the historical rights- which were the bases of the
preliminary chapter.
The breakthrough of the historical rights regulated in the article 5 th of the agreed
text for proposal of the new statute (not accepted by PPC and fervently supported by ERC)
was converted in a blunder competence guarantee.
At the reunion held of the 2 nd of July 2005 PSC-ERC parties observed that an
effort was needed to solve the competences chapter, once again law and politics were going
hand in hand. The aspect of financing was firmly considered to be illustrated by Cataluña –
the current representation of autonomic financing. The counselor of Institutional Relations
and Participation, Joan Saura has made such an ambitious and solvent proposal, firmly
accompanied by the political compromise of the tripartite as to be consequently defended in
the parliament of Cataluña and within the Congress of the Deputies.
Around the concepts the constitution offers to the competence chapter: exclusive
competencies, shared, executive, basically, normative preeminence, organic laws
49
“Proposta de reforma de l’Estatut d’autonomia de Cataluña elaborada per una ponència del conjunt dels
grups parlamentaris”- the proposal of reform for the Catalan statute elaborated by a Ponència made out of
parliamentary groups representatives, a text tabled in parliament on 08.07.2005.
50
Montilla Martos, José Antonio “Apuntes sobre colaboración y participación en el Estado autonómico. A
propósito de la propuesta de reforma del Estatuto de Cataluña”, Revista d'Estudis Autonòmics i Federals,
nº1, 2005.

43
modification, 150.2 and others. This option permitted to ERC party to support its ideology
based on the pact Spain-Cataluña. Reformulated it can be a pact based on mutual federal
trust, an acceptable solution in political and juridical terms to aspire at the self-government
of the Catalan nation.
The socialist response was no later than that prompt and clear, in twofold: yes
there is a political and juridical solution within the constitution with plenty federal self-
government aspiration and there is space and ration to make appeal to the historical rights of
Cataluña as generic and previous bases of the entire statute and therefore to consist in
constitutional support for the Catalan uninterrupted traditions: civil law, language and
determined lines in the Catalan territorial organization. The main-stream blundered issues in
the constitutional text were focused on: historical rights, competences and financing.
The nationalist support to the statute (on the part of the CiU party) was at that
moment enhanced in the form of a parliamentary majority capable to impulse to the Spanish
state a perfectly national project of Cataluña: a project plenary federal, one of ‘union and
liberty’, a project to make out of Cataluña the best country of Europe in social terms, a
country of democratic innovation and economic potency of Euro regional sphere.
Further it is time to look for those stream formulas of constitutional relevance
that secures the competence ceiling, as well as the historical continuity recognizance of the
Catalan nation along the successive Spanish governing regimes over times and more above.
Lastly the statute must not be the outcome of only one party, it must incorporate
the requisites of all them, and the ideas must coincide in such a way as to have a statute with
PPC support as well. This was the final job of political lobbying and persuasion of the other
parliamentary groups.
At the very beginning the outlook of the statutory text was a daring one, the
socialist leader was affording to launch affirmations of such kind: “the Catalan nation…, we
must enable the triumph of the federal idea in Spain…” conditioning all potential
achievements by the collective support of party parliamentary majority, PSC party was
calling for adhesion to the national project of statutory reform , whose triumph in the
Catalan parliament was more than relevant knowing that the party disposition in the Catalan

44
parliament is not a major one51. Another daring issue could be considered the one contained
in the art. 187 of proposal of statute reform concerning the proposition to transform
Cataluña in an electoral circumscription for the European parliament in addition to a
transitory electoral disposition regulating the request.
When the ponence elaborated the text it tried to comprise the interests of all
parliamentary groups of Cataluña, in this way a political compromise was reached- the
tripartite. To embody more support, more power the socialist fusion with ERC and ICV in a
three party compromise for the sake of the statute reform, in the same time the statute
benefits of CiU support with strong nationalist link, the socialists manage to gain the
majority they needed in the Catalan parliament with nationalist, Catalan and leftist
influences approached to the body text of the reform. The disloyal attitude displayed by the
PPC is the opposite of the political spectrum, even if PPC offered support to the reform
proposal at the beginning, the same support was denied afterwards, with strong opposition
even after the statute is approved one year later (when the PP launches a
unconstitutionality recourse in front of the constitutional Tribunal against the Catalan
statute enforced52). Afterwards the proposal ends with a strengthening of juridical, historical
background arguments of support, arguments intended to rule the conviction that political
groups united for a common goal due to the difficult historical conjuncture for which the
propose to reform came as the best outcome to those disagreements .
On the 8th of July 2005 in the palace of the parliament of Cataluña, was finally
admitted on the agenda the text elaborated by the Ponència with registration number: 25456
and compacted with the help of all parliamentary groups, called in catalan: Proposta de
reforma de l’Estatut d’autonomia de Catalunya elaborada per una ponència del conjunt
dels grups parlamentaris (Proposal of reform of the statute of autonomy of Cataluña
elaborated by a ponence made out of the whole of parliamentary groups). On 28 th of July
2005 the Inform of the Ponence was completed with all enmiendas of parliamentary groups

51
http://www.parlament-cat.net/portal/page?_pageid=34,34788&_dad=portal&_schema=PORTAL, visited
on 6/12/06 at 19:33.
52
http://www.parlament-cat.net/porteso/estatut/recurs_inconstitucionalitat_20061113.pdf, visited on
6/12/06 at 19:33.

45
incorporated.
Throughout 6 months of hard negotiation and increasing political tensions at the
level of the tripartite (PSC-ERC-ICV) and between the Central Executive and Generalitat
the pact between PSOE and CiU made the text of the statute to be delivered in public. The
text approved in the General Congress and Senate differs enormously in content from the
approved within the Catalan Parliament, although it augments the competences and the
financing and gives an indirect definition to Cataluña as nation.
In the summer of 2005 the negotiation among political Catalan parties into
redacting the Project for statutory reform creates two blokes of action, on one side the
tripartite of the Generalitat and CiU the most representative the party in the Catalan
Parliament. On the other side the PP remains out of this process since it considered certain
aspects sustained by its adversaries as unconstitutional and not conforming to the
citizenship. On the 1st of august 2005 the dictamen of the statutory reform proposal is
published in the Boletin Oficial del Parlament de Cataluña.

2. The proposal of reform of the Catalan statute

After sessions celebrated on days 28, 29 and day 30 of September 2005 in the
Catalan parliament the parliamentary groups (with representatives of all groups constituted
in a ponency)53 debated the dictamen coming from the Organizational Commission and
Administration of the Generalitat and Local Government about the proposal of the organic
law proposition by which a new statute for Cataluña was established and by which the
subsequent organic law 4/1979 from 18th of December that use to regulate the anterior

53
http://www.parlament-cat.net/portal/page?_pageid=34,36759&_dad=portal&_schema=PORTAL.
The Catalan parliament is located in Barcelona, the capital of Cataluna.

46
autonomic statute of Cataluña was derogated; after the parliamentary debate, the process of
enmiendas and decision, the statutory reform proposal for Cataluña was approved, in
the virtue54 in the plen of the Catalan parliament with an exceeding 2/3 of the majority of the
votes requested for a proposal of reform of the statute of autonomy for Cataluña meaning a
support of 120 votes in favor55.
The substitute of the statute from 1979 is approved on the 30 of September in the
Catalan parliament with the votes of PSC, CiU, ERC and ICV. The PP considering it
unconstitutional asks for its approval as constitutional reform but with the previous
reglementary dissolution of the Courts.
In the preamble of the reformed Catalan statute (of day 30 of September 2005) it
was précised that the Catalan nation has got consolidated overcoming generations,
traditions and cultures and it was asked for the necessity corresponding to them, that of
being a recognized land, in the formation of a state. Then we find the followings: ‘…
Cataluña has defined a language and a culture… has constructed a system of rights and
liberties, it is attributed its own laws and has developed a mark of solidarity living among
people who aspire at the social justice’.
The first paragraphs of the proposal for the new statute in the Plen Chamber of
the Parliament are an introduction using persuasive formulas and historical backgrounds
legitimizing the intention for reform and also present the continuity of incentives to bring
this reform forward as such: “the current statute follows the tradition of constitutions and
high rights of Cataluña (1714, 1914- Mancomunidad, Generalitat and Statute of 1932 and
1979) that historically suggest the political and social articulation of Catalans and Catalan
ladies… the aspiration for the project and dream of a Cataluña free of obstacles,
beneficiating the liberty and interdependence a nation needs… defining its own process of

54
In the virtue of the articles 56.1.b from the statute of autonomy of Cataluña and art. 115.2 of the
Regalement of the parliament and with the support of 120 votes,
http://www.estatuto.info/paginas/resultadovotaciones.htm.
55
http://www.parlament-cat.net/porteso/estatut/estatuto.pdf.
Aja, E. “La proposición de reforma del Estatuto de Cataluña”, en López Ramón, F. (ed.) De la reforma
estatutaria, Monografías de la Revista Aragonesa de Administración Pública, Zaragoza, 2006.

47
national construction in the form of plenty self-government of what/how it wants to be in
relations of solidarity with the other nationalities and regions composing Spain…”.
Further it continues resuming the historical legitimacy and continuity of the
Catalan statutes in the form of constitutions and high rights of Cataluña. In a Decalogue
form within the preamble of the new statute proposal the aimed objectives are listed: to
present Cataluña as a rich country guided by the principle of self-government, along the
concept of a nation that has never left behind the self-government form of the Generalidad,
a living created during the Republic of 1931 on the basis of the Catalan people consensus
(content of 2nd paragraph of the Decalogue); expresses an unique Catalan language,
composed by agile people seated on a rich territory, beneficiating of a catalog of rights in
the form of the preferably applicable Catalan law within the realm of the Spanish state
which at its turn is appreciated as being plurinational and by which means Cataluña
beneficiates of its space in the European Union. From the preliminary title on is emphasized
the fact that Cataluña is a nation56, with the aim that each nation, each country needs a state
constitutionally regulated and recognition, afterwards the new autonomic statute proposal
continues with reformed articles.

3. The constitutional procedure followed for the adoption of the proposal of

reform in General Courts of the Spanish state and in the Senate57

Previous political debate

56
http://www.parlament-cat.net/porteso/estatut/estatuto.pdf.
The General Courts of the Spanish state and the Senate’ headquarters are located in Madrid, capital of
Spain.
57
The senate is in theory the camera of territorial representation of the communities, but in practice is not
reflected constitutionally, exactly for this discordance the Catalans want to reform it, asking in the articles
of the new statute the organization of the Senate as a camera of territorial representation of the
communities, in the way the SC stipulates.
http://www.gencat.net/nouestatut/docs/procedimentreformacas.pdf

48
 The Congress approves the tabling of the law project concerning the Catalan
statute on the agenda with 197 votes in favor, 146 votes of the PP party against and one
abstention. The text passed to the constitutional commission to prepare a definitive form for
the text, the parliamentary debate beneficiated by the intervention of the Catalan parliament
delegation (formed by the following deputies: Arthur Mas -CiU, Manuela de Madre –PSC
and Josep Lluis Carod Rovira –ERC) who promptly defended the concept of nation. The
president of the government, Jose Luis Rodriguez Zapatero, trusted the democratic force
and value of the Spanish constitution when supporting the statutory reform for Cataluña -the
reflection of the Spanish’ state diversity.

Support and opposition

The constitution in itself admits changes in the statutes, moreover states about
Spain as being a nation of all national identities, as long as Cataluña is one autonomous
community with national identity or it is a nation enlightening the Spanish one, as the
Catalan delegation (made out by CiU, PSC and ERC representatives) emphasized 58.
Zapatero concluded in the Congress during that debate the need for changing the term
nation, the competencies distribution, the financing model, the bilateral relations and the
judicial power organization stipulated in the Catalan statute proposal, based on what the
constitution reserves as competences for the central power and unavailable for the statutory
legislator and in favor of the organic law of the judicial power and the organic statute for the
fiscal ministry. The straight opposition of the PP party in approving the tabling of the text
of statutory reform in the Congress and the will to send it back to the Catalan delegation for
reformulation as happened in the case of the Ibarretxe Plan (the statutory reform of the Bask
country), the nationalist popular feeling of Mariano Rajoy was denied by the head of
government(Zapatero) who supported along with the other parliamentary groups the

58
Affirmation of Manuela de Madre (PSC) in the Courts session during day 3rd of November, 2005, news
published in the newspaper 20 Minutos, page 5.

49
democratic right to reform constitutionally shown, by that the text followed to the
constitutional commission reunited in a negotiation process with a parliamentary
delegation59.

The constitutional procedure60 used for the adoption of the proposal for reform as
an organic law is a special one of urgency (and not an ordinary one because it needs
intercommunication at various levels- the parliament of Cataluña, the General Courts, the
Government, the Senate and the ACs), after being admitted on the agenda in the General
Courts (on the 2nd of November 2005) to the debated text enmiendas (amendments) to the
total and to the article are incorporated 61, as a result of the deliberation in the Plen, in the
Constitutional Commission, in ponences and in the meeting Constitutional Commission-
Catalan Parliament Delegation the text is approved in the General Courts (date 31 st of
March) by absolute majority of the Plen, then it is translated to the Senate (where other
ponences are constituted to examine and enmiend the text, therefore a term of 2 months is
given in order to present enmiendas to the article) and after this it was sent to the General
Commission of the Autonomous Communities by which moment the Catalan Parliament
conformed the text according to the changes brought through enmiendas, thereafter the text
is examined again by the Commission of the Autonomous Communities and by the
Delegation of the Catalan Parliament that had to determine the definitive form of the text. In
the same time-period the final form of the project for statutory reform has to be approved
(by absolute majority) in the Senate, afterwards it is sent to the Government and Parliament
of Cataluña to the effects of a referendum convocation in Cataluña; the popular consultation
convocatory via referendum needs to be authorized by state (aspect regulated in the art.
149.1. (32nd of the S.C.).
On the 5th of October 2005 the project for reform enters the Congress. On the 3 rd
is accepted on day order of debate and voted with 197 votes in favor, 146 votes against of
the PP and one abstention by mistake of one socialist depute. The text was not remitted back
59
Newspaper Metro directo, article El estatut salva el primer escollo, 3rd, November 2005, page 5.
60
http://www.estatuto.info/paginas/cronologia.htm#INICIO
61
Once with the organization of ponences and constitutional commissions to analyze the statutory text.

50
to the Catalan parliament as the populars wished and during the month of December was
amended, party agreements and reunions were held to reach consensus within the congress
and within the Catalan party who were seeing their support to the text in certain topics
erased. On the 27th of December the term for enmiendas was closed. The negotiation did
not reach an end up till January 2006 when the agreement Zapatero-Mas, the two
representative parties at central level, PSOE and at the level of Cataluña, CiU, outlined the
support of the Central Executive for the closed, rigid statute.
On the 6th of February 2006 a ponence formed by congress’ deputies and Catalan
parliamentarians dedicate the entire month of February to analyze and touch those articles of
the statutory text in such way as to complete emendations to the articulado conforming to
the constitution and Catalan intentions for reform. The pact PSOE-CiU was given the
positive by the ICV party but treated with opposition by ERC and PP. PP still considers the
text unconstitutional, whilst ERC is unhappy with the emendations brought to the
competencies topic about the airports administration left in the hand of the State and also the
denomination of nation given to Cataluña, but in an indirect formula and only in the
preamble of the text.
The ponence is approved on the 24th of February 2006 and passes forward to the
Constitutional Commission. The 9th of March brings debates within the Constitutional
Commission of the Congress of Deputies, presided by Alfonso Guerra, when the pact
PSOE-CiU is ratified, but topics like: sporting Catalan selections and their international
role, the Catalan circumscription and the European elections, the regime of the airports,
ports administration and the cession of these infrastructures, mostly that of El Prat airport
created more polemics than agreement.
Finally ERC votes against the statute resulted out of the Constitutional
Commission , the unity of the Catalan parties is broken, ERC showed its disappointment to
the airports administering decision and promised to defy the popular referendum of June
with the “no” promotion in public.
Even from the beginnings of March 2006 negotiations were held as to set up
details for the referendum campaigns, thought to organize two campaigns in the month of

51
June, whilst the political groups of the tripartite plus CiU were assiduously defending the
‘si’ for the statute in referendum, all these in the legal context in which article 109 from the
Catalan law of the audiovisual prohibits to realize such campaigns who involves he services
of the administration, so the Executive implicitly was impeded by law to explain the content
of the statutory text62.
The PP party opposes in the Congress within the constitutional commission of
debate. To the voting of an article from the statutory text containing the institutional part,
the PP advocates it as unconstitutional. For this attempt of the PP party, the other political
forces accused the party of Rajoy (the PP leader) as incoherent. The si vote given by the
popular party in Cataluña to the articles related to the institutions metamorphosed thereafter
in no, this incoherence of the PP line was based on the argument that the title regulating the
institutions has an inner vice of unconstitutionality supposing an expulsion of the Catalan
state, a mistrust vis-à-vis local administration whose autonomy is invaded, the PP’s
enmiendas (emendations) to this title have been rejected in block by the socialists, accused
in turn by serving their own interest in detriment to those of PP63.
The title concerning the institutions pleased the group of the consensus around
the statute, meaning CiU, Iniciativa and PSOE, whilst the juridical regime generated
reproaches around ecosocialist and republican associates.
21st of March- the constitutional commission of the Congress approves the
project with the votes against of the ERC, PP and EA parties.
The 27th of March- ends the term for enmiendas and the 30 th of March 2006
culminates with the voting in the Congress of the Project of the Catalan Statute resulted out
of negotiations, negotiations held without PP’s participation.

62
Newspaper “El periodico”,article: El govern ya tiene a punto el referendo sobre el nuevo estatut, “the
government already set up the referendum for the new statute”, page 21, march, 11, 2006.
63
Article belonging to Monserat Baldoma, “El PP dice ‘no’ a un titulo que en Cataluña avalo, ”The PP
says ‘no’ to an article which in Cataluña rumbled”, in the newspaper El Periodico, Madrid, March, 11th,
2006, page 20.

52
 In the text passed by the Congress of deputies to the Senate at 31 st of March
200664 the concept of nation previously contained in the reform proposal of the statute of
autonomy of Cataluña is eliminated. Once approved in the Congress, the text remitted to the
Senate lasted only 2 weeks of debate. Once entered the Senate the text of the Catalan
statutory reform follows a similar process as in the Congress, the text is again analyzed
within commissions of specialty counting with the participation of all autonomic
parliamentarians in the debate of emendations.
By 12th of April ended the term for the presentation of enmiendas in the Senate.
Day 27th of April is concluded with the rejection of PP’ veto and of all its objections.
The text sent to the Senate passed through the ponence who debated it and left in
the form it arrived from the Congress and it was approved by the General Commission of
the ACs on day 5th of May and in the Plen of the Senate day 10th of May 2006. After this the
text of the statute was resent back in the Congress where the final voting of the text
counted with the support of all political groups, less the support of the Popular Party (who
benefits of majority of seats in this chamber) which voted against and ERC who abstained.
In the Low Chamber the document resulted was voted in Plen by absolute majority voting
procedure- 176 votes of the total of 350 deputies with the character of organic law. The
ERC focuses its rejection to the text and announce the “no” it will proclaim during the
future referendum, although guaranteed its abstention in the Senate voting of the Statutory
text. As imagined the 125 senators of PP voted against, those of ERC abstained, whilst all
the other parliamentarians (PSOE, PSC, ICV, PNV, CiU, Coalition Canarias, BNG and IU-
in number of 128) supported the text approval with a fierce discipline.
Must be stated that the Catalan representatives have the power to retrieve the
statutory text by simple majority voting in any moment of its analysis and voting if
considers their principles altered within the evolution of this procedure.
Thereafter within 10 days the parliament of Cataluña had to decide if it agrees
with the indicative of the Courts. On the 12th of May Maragal, president of the Generalitat
summons day 18th of June as referendum for the statute.
64
http://www.gencat.net/nouestatut/docs/estatutsenat.pdf

53
 18th of June 2006 was decided as date to submit the text of statutory reform to
referendum only after it passed by the General courts (and obtained the approval of the Plen
of the Courts) to the Government of the Spanish state and to the Generalitat of Cataluña 65.
The Catalans approved the text by referendum with a yes in majority, but only half of the
Catalan population participated in the referendum.
In less then a year the Catalan initiative to reform the statutory text incited other
ACs to attempt at enhancing their autonomic competencies bordering in the form of new
21st century statutes of autonomy, and these are the communities of Valencia, Andalucía,
Galicia, Bask Country, and Canary Islands66.

4. The content of the constitutional text of the Statutory Reform of Cataluña

Composition: the statute disposes of 223 articles incorporated in 7 titles and also
provisions at the end.

The extent of the claims for self-government – backing arguments in support of

effective request: identity, financing and competences

The self-government claim concluded in the formation of a bilateral agency to

mediate the relations State-Generalitat had to correspond to the constitutional previsions of
the SC, whilst certain aspects concerning exclusively the Catalan territory and jurisdiction
like language, specific competences or territorial organization, the taxation level and fiscal

65
http://www.gencat.net/nouestatut/docs/procedimentreformacas.pdf, page 5.
66
20 Minutos Newspaper, article: Las Comunidades quieren estatutos del siglo XXI, trs. “The communities
want statutes of the 21st century, from 25th of May, 2006, page 8.

54
decentralization can be reformed according to the Catalan’ wishes as long as administration
will be closer to the citizen in this way and autonomic solidarity respected.
The PP party and its leader Mariano Rajoy posed themselves in a very
conservator and centralist position up to claiming unconstitutional or at least contradictory
to the Spanish constitution provisions the Catalan claims from the statute for autonomy.
Rajoy also made public the reason of Zapatero’s support of the Catalan statute,
his need to have the vote of Cataluña in establishing the taxation of the state and moreover
to maintain his socialist candidature in power. The PP’ leader consider the Catalan text of
reform unconstitutional due to the power it invests the Catalan politicians, but not the
citizens by the restrictions and limitations it poses.

Identity: Origins of the Catalan language

The issue of the language is used as to legitimize the using of Catalan language
in parallel with castellan but as it reveals predominantly. In accordance with the dictionary
of the virtual library, section languages 67 is affirmed that bask and Iberian after Catalan
substrate are related languages. The Catalan contains a series of words of obscure origin
sometimes, others having a ‘bask origin’. To the Catalan the dictionary attributes the
following definition: the Catalan is a Romanic language developed in the north-eastern part
of the Iberian Peninsula and with an Iberian substrata , this substrata is less obvious since
the second wave of Romanization that operated after the Carolingian conquest of the
Catalan Pirineos , leaving the frontier with the Islam to the south of Barcelona, and leaving
to the Catalans the northern part (the province of Occitania) where they have been
developing the commerce, the cultural and religious evolution. The second Romanization is
similar to that of the Pirineos Mozarabias which displayed the phonetically bask evolutions

67
http://www.celtiberia.net/articulo.asp?id=1940.

55
that after the catalanization of the language disappeared and only some toponims have been
conserving the trespass of mentioned language.
The preliminary title, article 3 of the proposal for the statute reformation
considers that the proper language of Cataluña is the Catalan68.
The political debate concerning normalization- the use of the official languages
in the juridical realm created controversies. On the 12 th of April 2006 came the proposal for
an organic law to regulate the use of Catalan into justice as a right of the Catalan citizen and
in the virtue of the diversity existent within the Spanish state. The constitutional limits
posed to the linguistic delimitation at judicial level; in this concern it was admitted the
formation of a ponence to analyze the proposal of the Catalan parliament. In the Congress
the law was brought the following amendment: the use of a certain language in the judicial
administration is not mandatory and within the superior tribunals of justice to be further
formed councils of autonomic judicial power 69. In reply, the opposition (the PP party)
warned the PSOE lobby for the adoption of this organic law that its partiality for the
recognition of the Catalan autonomic language into justice enables the design of a new
authentically judicial plan.
The exclusive use of Spanish in front of the European institutions is considered
an error qualified as a historical injustice70, by this recognizing the use of Catalan is seen as
natural right in itself. The current president of the Supreme Tribunal and of the General
Council of Judicial Power, Francisco Jose Hernando showed its opposition to the requisite
to know and speak Catalan in the judicial career in Cataluña and considers it a negative
imposition because the Catalan language should be mainly a positive projection in the other
aspects of life and not mandatory requisite and a condition of capacity in the exercise of
justice71.

68
http://www.gencat.net/generalitat/cat/estatut/titol_preliminar.htm.
69
http://www.avogacia.org/w3/article.php3?id_article=686
70
A reply of Jose Montilla, titular of Industry, in a discourse in front of the EU Council of Ministers in the
defense of the Catalan language’ use published in 20 Minutos newspaper, 30th, November, 2005, page 9.
71
20 Minutos newspaper, article El presidente del Supremo iguala al catalán con las sevillanas, “The
president of the Supreme equalizes the Catalan with the sevillanas”, January 11th, 2006, page 6.

56
 National singularity and the definition of Cataluña

Ranging between terms like nation and nationality Cataluña among the other
communities of Spain managed to ensure its singularity at national Catalan level by drafting
the current new statute that recognizes the national singularity of Cataluña and its historical
rights and guarantees the maximum protection and projection of the language and Catalan
culture. It supposes a high step in front in linguistic rights by establishing that the citizens
and the citizen ladies of Catalan have the right to choose and use freely the language they
wish, but also the duty to know them both, castellan and Catalan, besides perceiving
Cataluña as a nation72. For this the following aspects the statute emphasizes must be
outlined:
-historical rights
-linguistic rights
-recognition of the symbols
-Catalan communities to the outside
- preserving the cultural patrimony
-Recognizing the Aran
-Linguistic rights of the Aranes

It must be outlined 5th article that recognizes the historical rights of the Catalans
in the bases of the constitutional precepts differentiating between nationalities and regions,
the protection of the Catalan language an the recognition brought to the communities who
have plebiscite statutes of autonomy in the past.
Art. 5: Historical rights. The self-government of Cataluña fundaments in the
historical rights of the Catalan people, in the secular institutions and in the juridical Catalan

72
On 18th of February 2006, 300.000 persons manifest in Barcelona claiming that Cataluña is a nation and
in defense of the statute approved in Parliament.

57
tradition that this statute incorporates and actualizes defending the second article of which
derives the recognition of a singular position of the Generalitat in relation with the civil
right, language, culture, then projection of these in the educational realm and the
institutional system the Generalitat is organized.

Recuperation of competences

Legitimating itself in the uniqueness of the language, the vocation of the Catalan
people for the plan of enlarged self-government (already ceded by the Spanish state in a
certain degree), in the coexisting territory and the Catalan culture, the Catalan
representatives took advantage of the political conjunction favorable of the current socialist
governing era to enlarge their competences by putting into danger the unity of the Spanish
state inside as outside the borders, creating a rupture in the principles of inter-territorial
solidarity and autonomic equality73 correspondent to all communities in terms of equality in
finances and competence aspects situating the requests launched in economic and
institutional marks (like the independent administration of the airports: the case of the
airport El-Prat, the plan of the financial incomes and the Catalan reduced participation to the
state costs and autonomic finances of Cataluña) as effect of the exceeding interference of
the Spanish state in the field of shared competences during the anterior legislature of the PP
and the charges dropped to the Constitutional Tribunal expecting for solution, and whose
delay determined the reaction of the Catalan political class to concretize in the form of the
current Statute74.
The current text of reform of the Catalan statute contains articles with certain
inference to the aspects of exclusive competence attributed by the SC of 1978 to the Spanish

73
E. Reguera: pages 137-145.
74
I have consulted the previous schemes to the statute reform proposal of September 2005, those pertaining
to June- July 2005 and also sentences of the Constitutional Tribunal:
http://boe.es/g/es/bases_datos/doc.php?coleccion=iberlex&id=1986/1137&codmap.

58
state (competences concerning: immigration, foreigners, Cataluña- in international relations,
acting outside the borders as an independent unit, pretends to establish diplomatic relations
with the European Union, defense and armed forces, procesal law, in the sectors of justice,
the mercantile legislation) contained in the article 149 of the SC.
In the field of competences the new statute concerns those issues related to the
citizenship. Asks for capacity for the Generalitat to infer in those realms that mostly
preoccupies the citizens of Cataluña like employment, security, and immigration and
working permits of the foreign workers. Incorporating new competences and renovating
those already existent the wellbeing of the Catalans and the state progress must be
guaranteed only from a certain proximity can diagnosed and decided what concerns the
citizens, this is why a better and closer administration to the citizens can mostly be adapted
to the reality of Cataluña. In the following some of the competence issues are to be
mentioned:
-establishing a typology of competences précising the role of the Generalitat and
State in different matters in function of competences attributed
-policies of offering immediate attention to immigrants (as Cataluña is offshore
community is faces cases of shore immigrant refugees or illegal entrance on the territory)
-work permits for foreign workers in collaboration with the state to expedite
residence permits
-kindergartens, mandatory education scholarships
-working inspections
-recognition and administration of non-contributive services
-administration of infrastructures and telecommunications
-private security
-participation of the Generalitat in state deciding over investments in great
infrastructures and cultural equipments.

59
 The Generalitat’ competence into Justice

The Superior tribunal of Justice of Cataluña will be the last judiciary instance
and a Council for Justice of Cataluña will be create, moreover in this concern a few issues
outlines:
-the Superior Fiscal of Cataluña
- The Superior tribunal of Justice of Cataluña as the last judiciary instance in
Cataluña
-competence of the Generalitat with respect to material means of administering
justice
- Competence of the Generalitat with respect to personal means in service of
justice administration
-competence of the Generalitat over fee-exempted justice
-competence attributed in peace and proximity related justice
-influence on organic laws’ elaboration
-the creation of judicial organs or investing the Fiscal Chief of the Superior
Tribunal
-Cataluña can also develop directly the European Law
With the references of the new statutory reform, Cataluña could increment its
competences in matter of infrastructures administration, administration of airports, ports as
well as proximity railways and dedicates an article to declare the exclusivity of the
Generalitat in executive competences exercised before by the State Administration.

Competence on immigration

60
 The Generalitat reserves the right to appoint the policy of immigration and
sheltering of immigrants on the Catalan territory agreeing with the State in what the number,
the place of origin and professional capacity of immigrant group is concerned.

Approval of new institutions

The statute forwards a new bureaucracy, the second title of the statute related to
the institutions De las instituciones (an aspect rejected by the PP) consists in substituting the
former organization of the provincial deputations (diputaciones provinciales) with a new
model of veguerias- what implies an afterwards transformation (through O.L.-organic law)
in the electoral map of the Spanish state of the provincial circumscriptions (Spain has a
d’Hondt electoral formula), another transformation in the realm of competences of the state
Mediator (Defensor del Pueblo). As the Catalan municipals form part from the
administrative regime subordinated to the Generalitat, extending action in the realm of the
local administration, the title regulating the institutions is considered one invading the
autonomy in competences of the later.
Another organ taking birth once with the new statutory text is the Council for
Statutory Guarantees (former Consell Consultiu), criticized to be a sort of a Constitutional
Tribunal within an undercover constitution, as the Statute undertakes so many competences
from the central government and administration and also tends to create the future prelude
of conflicts of legitimacies among state and community’ organs.

Infrastructural amendments

61
 The constitutional text of the new statute concerns as well the transfer of
administering airports and aerodromes (El Prat, Sabadell, Girona and Reus) from the central
administration to the Generalitat, this article when debated was approved due to the
agreement of ERC, PSOE, PSC, CiU and ICV parties in the general Courts sessions. The
overall agreement has taken in consideration only the benefits that from the date of the
cession of El Prat will be part of the Generalitat budget. The syndicates and companies
intervention (CCOO, UGT, USO, AENA, Iberia) contrary to this decision have not been
scored in the political agreements. The effects of such decision have been visible shortly:
strike worn, strike at state level concretized from 9th July for two months time in the aerial
system, thereafter the enforcement of the new statute an economic crisis is registered, El
Prat airport collapses on the 28 th of July due to the malfunctioning company Iberia-
Generalitat, lacking channels of communication at the new level75.
For the above transfer of competence in administering infrastructures of state
interest was used a constitutional channel (article 150.2 S.C.) contravening with article
149.1, 20th matter regulating exclusive state competences over “…airports of general
interests…”76
The foremost intention is to enter the so-called “federalism of execution line” to
the extent that the mayor part of the competences of administering to be autonomic in
opposition with the unique administration, this operation can be taken throughout by a
statutory reform via article 150.2 SC of delegating or competence transference. Cataluña
already has the precedent in this concern, O.L. 6/1997 from the 15 th of December by which
the central administration transferred to Cataluña executive competences in matter of traffic
and vehicles circulation.

75
http://www.20minutos.es/noticia/148236/0/aena/huelga/elprat/
http://www.elmundo.es/mundodinero/2006/07/28/economia/1154079241.html, visited on December, 11th,
2006, h: 08:10.
76
The Spanish constitution, 8th title, the 3rd chapter: territorial organization of the state- autonomous
communities.
Newspaper El Periodico, ERC y el PSOE preven cerrar hoy el pacto sobre El Prat, “ERC and PSOE
foresees agreeing on the pact of El Prat, article by Toni Sust, Madrid, March, 14th, 2006, page 21.
Newspaper El Periodico, "Mi comparecencia tiene que ver más con el 1-N que con El Prat" , an interview
taken to Joan Rangel, a government delegate in the catalan parliament, by Andreu Farras, Barcelona, 29
august 2006, page 16.

62
 The constitutional text took a large extent to guarantee the State’ investment for
the next 7 years within Cataluña’s infrastructure because one of the transitory dispositions
of the Catalan statute stipulates a compromise to be accepted by the central administration
consisting in a percentage of investments Cataluña will receive as share to the budget from
2007 up to 2014, a percentage that by no way will be inferior to its participation to the State
GDP- meaning a 18,5% of the GDP, somehow for Cataluña the participation to central
administration recourses is a way to take back what they give in to the budget and to
sufficiently cover such investments the infrastructures are a good sector to be filled
including short term(7 years) results77. In this way the fund of Cohesion remains to a side as
long as Cataluña receives back the equivalent of its own apportion to the conjunct of Spain.
The system of financing ceded to the autonomous community of Cataluña within
this statute enables the ACs to charge and to have full control over the majority of their
imposts. Moreover reminding the agreement over the Tributary Agency, the latter one can
be converted into a unique tributary administration in Cataluña within 2 years time (CSA),
beyond the nationalist envisaging and adding this to the already paced competences
concerning immigration, airports, ports administration, work permits and inspection of
work, now the puzzle shapes into a better form. When you enjoy competence over labour
force, work, meaning jobs, production and therefore incomes, enhanced by a own fiscal
processing and you are also the one who administers what you produce and the imposts you
release this means more than self-governing and autonomy in administration for the
Cataluña’s Generalitat, this is marking a separator line without direct relation between local
and state administration, it is only the Generalitat in charged with financing channels among
the Catalan Town halls (ayuntamientos) and therefore much closer to the Catalan citizens in
a circle themselves conclude: Cataluña. With this Cataluña is over financed it will benefit of
more of its finances for the immediate needs it has. None the less there raises the transfer
from private to public funds, meaning higher taxation on Catalan citizens’ shoulders and

77
Newspaper El Mundo, article Cataluña será la única comunidad con la inversión del Estado garantizada
por 7 anos, “Cataluña will be the only community with an investment guaranteed for the next 7 years”,
23rd, January, 2006, page 1,8.

63
higher amount of money in administration on the Generalitat’ shoulders once with the fiscal
reform regressive in itself.

El Prat concesion

The concession of El Prat is asked by the ERC and CiU parties due to the
negotiations of January 2006 in the Congress and firmly considering that the chaos created
by the 28th of July 'strike was to the malfunctioning administration of the state tow3ards
regional infrastructures.
The ceding of ports and airports to Cataluña is supported by Catalan politicians
in order to ensure a better administration within Cataluña and outside in terms of services
and resources. Moreover this aspect of ceding El Prat to the Generalitat has been
approached as a national interest for the Catalan citizenship.

Identity: The concept of nation –taken to the limits because of inexistent real
public policies to enforce; idiomatic and institutional rigidity

The constitution in the 2nd article recognizes Cataluña as a nationality.

In the preliminary stages the term nation was non-negotiable in the statute and
implicitly rejected the use of national identity for Cataluña as proposed by the head of
government (from Joan Saura’ point of view, councilor of R.I. of the Generalitat). The

64
confusion cultural/ juridical nation- the text of reform of the statutory autonomy of Cataluña
is guided by the ideal each nation a state, diffusing in an express form the constitutional
requests (the articles are a mixture of fundamental rights of self-determination- the right to
dignity of the person, the domain of civil Catalan law78 with articles of political
administration whose objectives interfere- persisting the antique forms of territorial
organization, in administration persists a bureaucracy that ossifies the system- a type of new
intricate agencies and institutions- the Mixed Commission of Economic and Fiscal Affairs
State- Generalitat) and up to skipping from view the real necessities of the Catalan people.
As the political class cannot come up with real public policies they launch themes of
devolution already reiterated in terms of continuous ideologization, a certain form of
Catalan identity and linguistic normalization is impose especially in the social life 79. In the
beginnings of January 2006 the term nation was sustained in the political negotiation in this
form within the Catalan statute formulation by the CiU and the Catalan tripartite.
The political catalanism presents itself as a project for the federalist organization
of the Spanish state with which it maintains equal and fraternal relations, as Spain is a
plurinational state, in the same way Cataluña is a nation under the mark of the Spanish
nation. Sociologists affirm that lately the regionalist identity has highly increased, people
feel much related to their province then to the community they live in and then they are
identified more with the nationality then with the Spanish state per whole, only if they are
78
´´Informe sobre la Reforma del Estatuto´´, Inform about the reformation of the statute, Generalitat de
Catalunya, coordinator Dr. Antoni Bayona, Instituto de estudios económicos, 2003; page 192 about the
civil Catalan law.
79
Commercial and services’ domains suffer the mayor percentage of penalties on linguistic normalization
reasons, in education the Catalan has priority (to what point this normalization can be interpreted- the
exclusive use of Catalan language, no matter if the statute mentions the Catalan along castellan as official
languages and admits them both), the ambiguity of the identity and linguistic policies takes up to a forced
dimension. Another example would be the subsidies of the mass-media in Catalan by the Generalitat (TV
channels, press, it also promotes the image of Barca as national symbol). The term normalization is a
juridical subterfuge implied in an imprecise, undetermined way to the margins and supposes the utilization,
quite forced of the Catalan in all possible domains.
´´La constitución de 1978 y las Comunidades Autónomas´´, The constitution of 1978 and the autonomous
comunities, coordinador Eduardo Espin Templado, Centro de Estudios Políticos y Constitucionales, Laxes,
Madrid, 2003, pages 263-265.
http://www.elperiodico.com/EDICION/ED060405/CAS/CARP01/PDF/g020mR91.PDF.
Estudios jurídicos sobre la Ley de política lingüística,(Juridical studies about the linguistic policy law),
Marcial Pons, Madrid- Barcelona, 1999; F. Rubio Llorente, ´´La Ley de política lingüística de la
Generalitat de Cataluña, (the law of linguistic policy of the Generalitat of cataluna), Cuadernos de Alzate,
nr. 20, 1999.

65
questioned how they feel more Europeans or Spanish, the patriotism is kept alive because
their answer is only one: Spanish.
Cosmopolitism, insufficiently accepted and nationalism, although considered a
kind of obsolete seem to create divergent issues when mentioning the dynamics of national
self-determination because the individual autonomy itself feels threatened in a world which
pretends to be undifferentiated. Confrontations are a following step when scenarios of self-
government are claimed in such an interdependent realm.
Understanding the full meaning of democracy in terms of nation-states implicitly
leads to enhanced and reiterated scenarios of self-government claims. a way to build the
unity of Spain per whole out of differences wants to be perceived the incorporation of the
nation concept in the Catalan statute.
The plurinational value should be perceived as a value to be protected.
The 1978 juridical text has suffered transformations due to those ideas, values,
shared feelings of the Spanish people who follow the wave of time, the wave of change
which is not at all the same with the one of that time the text was compacted. And only
throughout this different identity of all the being parts perceived as so makes sense the
adhesion to the Spanish state, beyond the feeling towards the Catalan identity. The debate
created around the concept of nation incorporated in the Catalan statute lost the sense it was
intended to, that of social system.
But the normative design of the electorate puts limitations to the autonomic state
model that obliges the Spanish national plurality to ask for permission whenever the case of
higher self-government will.
Forming identities is an openly changing process, but what Spain has failed to
understand from time to time whenever self-government claims appear is that exactly this
diversity within the unity comes to constitute their avoidance of the other identities
contained by the internal nations of the Spanish state who wish to enhance competences.
Putting together what people feel as adhesion to their national Catalan
autonomous community and what danger constitutes delivering them competences and
nation statute is like separating the rational from the moral, ignoring the constitutional text

66
of 1978 just by the fear that giving to Catalonia such enhanced competences and nation
statute tomorrow the whole Spain will no longer be the same united and decentralized state.
Whilst the last will be contrary to the constitution.
Forfeiting democracy is not trying to restrict the existent plurinational Spanish
reality but to accommodate it with the entire Spanish social reality and also within the
juridical framework.
A state admitting the differences composing it is a strong identity state that
accepts renovation and opens before the cosmopolite and emancipator thinking80.
The idea of nation according to nationalists is desiccated into objective-
individuals sharing an identity and subjective-the will of believing themselves as forming a
nation; none of these is relevant for claiming a nation statute. The Catalans are not
preoccupied to reform the existent statute81, the claim comes exclusively from the nationalist
party and the socialists in the favorable political framework concretize it. As it can be seen
the nation concept is fiction, a creation of the political class who does not know to hold
priorities if we are to look at the expenses registered to organize or subsidize various
national Catalan events, associations, symbols in detriment of the real problems of the
Catalan people.
When asking about the fiscal balance, putting limits to solidarity and autonomic
financing the before agreement among Spanish people is not taken into consideration, the
decision of the political class to put limits to such duties is an unilateral one and intended to
challenge spirits because the ones who pay show their solidarity and those are the Catalans.
The content of noble democracy is made out of debate, exposal of reasons and the justice
brought by the citizens' decisions, not at all the barrier the left political side poses in front
this is how much we offer to the solidarity autonomous fund and we are not negotiating
beyond these percentage82.
80
Newspaper El Pais, article: "Is Cataluña a nation? Insufficient cosmopolitism, obsolete nationalism" by
Joan Subirats, academician of Political Sciences and director of the Institute of Government and Public
Policies of the UAB, 26th of June 2005, page 17.
81
Whilst only 4% of the Catalans consider a priority the statute reformation, after a research of La
Vanguardia.
82
Newspaper El Pais, article: "The price of Nations" by Felix Ovejero Lucas, professor of Ethics and
Economy to the University of Barcelona, 26th of June 2005, page 17.

67
 State legislation versus Catalan statute legislation

Sport selections- art. 134 of the Catalan statute regulate sport selections,
participation and creation of sport federations that would carry out leisure actions and
represent Cataluña at state, European and international level. Even if within Congress
debates over article’ content has been considered a controversial aspect affecting the
Spanish state sport integrity, in the end the article was amended regulating the way sport
and leisure are exclusive part of the Generalitat by mentioning the purpose of development
of leisure only.
The norms with statute of Law are laws emanated by the local autonomic
parliaments of the ACs in the virtue of the recognition of the political autonomy of the ACs,
autonomy which in its main acceptation means the very capacity to self-rule, all these occur
whilst the state law is prevalent to autonomic law and complementary.

Electoral convenience

The democratic mechanism reached only during the 7 th legislature of the

Generalitat by the power alternation of the CiU- PSC parties 83 has as president of the
Generalitat on Pascual Maragal (PSC- CpC parties) and as president of the parliament on
Ernest Pascual (belonging to the ERC party).
Since 20th of March 1980, the date of the first legislature up to the 6 th the
governing party of the Generalitat was CiU in opposition with the PSC until the 7 th
83
http://www.parlament-cat.net/portal/page?_pageid=34,34652&_dad=portal&_schema=PORTAL

68
legislature when the socialists won the elections to a difference of only one percentage from
the unionists, the disproportionality reflects in the seats in the parliament where the CiU
detains the majority of seats, for this the PSC in order to govern in majority had to recur to
an artifice- the tripartite – containing leaders of ICV- EA, PSC and ERC that even if
associated act separately84. With all efforts the tripartite will be maintained up till the end of
the current legislature.
It is affirmed that 2005, respectively 2006 was the crucial year of political
coinciding interests when the socialist party managed to centralize the wills of all by
bringing forward the assiduous nationalist attempt of CiU concretized in the form of the
current statute of autonomy for Cataluña, along with objectives supported by the other
political groups, and this has no other name than „coalition”, an effort sustained by many on
the political scene with common aims. After all the entire political dialog is the mainstream
of a democracy.
The launch of statutory claims of Cataluña generated the PP’s boycotted over the
Catalan products and instigation to forms of protest of all Spanish consumers (a fact
concretized immediately in the drop of Catalan Champaign sales of 2005 Christmas); but
whenever gambling for a common objective, the CiU-PSOE rivalry proved to erase former
conflicts and antipathies when the perspective of dual governance in the scheme of the new
statute approval emerged, considered Arthur Mas, the CiU president.

The Moncloa political pact85

The 23rd of January 2006 reunited the two pillars agreement of support of the new
statute for Cataluña, that of CiU in the Generalitat and PSOE at central level. The new
model of state concerns a change in the executive once a new legislative text is approved in
a referendum for the Generalitat, consequent to the 18 th of June referendum for the statute
further elections will take place.

84
http://www.lukor.com/not-esp/locales/0412/10115024.htm
85
Newspaper El Mundo, section Modelo de estado, “State model”, 24th, January, 2006, page 8.

69
 Political perspectives enabling republicanism. Catalan political parties and
parliamentary groups86- scopes and composition87

Catalan political parties regard Cataluña as a nation with a collective identity

and claim for the independence and sovereignty of this one (sovereignty is a controversial
aspect because the autonomous communities do not poses historical sovereignty, meanwhile
the sovereignty resides only in the form of the Spanish state), they reclaim the self-
determination right offering in the same time the solution to make by Spain a federal state
(the concept of legitimacy of the Spanish state is moreover questioned) or to organize it in
the form of a union of Republics (and implicitly Cataluña would be the Catalan republic),
they get even to imagine the organization of Cataluña as an European circumscription as the
Paises Catalanes88. Besides this, the parties identify another common claim as well, that of
the financing, they are not satisfied to accomplish with the financial share of state’ expenses
they are to submit as participation to the Autonomic Fund and denounce an over evaluation
of expenses posed on the shoulders of the Catalan citizens who even if producing more
above the media income of the rest of the communities they receive the same amount of
salaries, a quite unjust fact for the dignity of the person.
Cataluña has to be a state within the European Union and to enable such a status
it must benefit a good appropriate financing for all sort of policies (considers the general
secretary and representative of ERC in the Congress)89.
In what concerns the income recalculation and the autonomic participation quota
we could appreciate that – since decades the same rationality is implied to justify national
naturalness’ claims coming from behind (claims almost looked for to be as much as
impossible and unaffordable by the others) now placed asides to those of economic nature

86
http://www.parlament-cat.net/portal/page?
_pageid=34,35595&_dad=portal&_schema=PORTAL&p_esco=0
87
http://www.parlament-cat.net/portal/page?_pageid=34,34683&_dad=portal&_schema=PORTAL.
88
http://www.nodo50.org/unidadcivicaporlarepublica/documunntosrep/partidos%20catalanes.htm.
89
Citing from the newspaper 20 Minutos, article Sentir patriotism es sano y necesario, “Feeling patriotism
is sane and necessary”, 20th of February, 2006, page 10.

70
on the fundament that Cataluña, the way is posted in the preamble of the statute, is a rich
country and in consequence its citizens should have a much better living standard, in
accordance with Cataluña’ s productivity- is in the last circumstance a mean of political
manufacturing to catch the support of the people in favor of the statute, to legitimize it and
as it will be submitted to a referendum of the Catalan people this should vote in favor of the
statute with the faith that only once reached the enlarged autonomic competence degree, the
model of financing desired and the statute of nation for Cataluña, all will be in the way the
populist discourses express the situation: ‘each citizen has the right to a dignity living …
equality of opportunities for all…’.
The aspirations to form a federalist Europe under the subsidiary principle (each
nation a state in the same time within a plurinational, federalist state) and the calling to EU
for not respecting the right to self-determination of the nations is the daring of the socialist
parties of Cataluña to go ahead with a political program that is paradoxical in itself
meanwhile it is rupturing the democratic principle of national solidarity by skipping the
participation to the PIB in the same way along the other ACs. For the president of the
government is possible a “constitution who allows a unitary and central state and a federal
state as well”, moreover for a plural Spain the Charta Magna is flexible and permits various
models of political autonomy (declaration of Zapatero).
The essential is always lost from view when there are idealist aspirations of the
nation -type, another model of financing, a better living for man and women, in this way the
modest citizen leave apart the real problems that affects him and starts trusting the political
offer guided by illusions, because as any kind of legislature and type of power it comes with
a governing program on paper and discourse, thereafter if the real policies 90 do not appear
they have to keep on alimenting the expectations of the electorate.

90
About the capacity of the Generalitat to set real policies in the´´Informe sobre la Reforma del Estatuto´´,
Inform about the reformation of the statute, Generalitat de Cataluña, coordinator Dr. Antoni Bayona,
Instituto de estudios económicos, 2003;page 21.

71
 The autonomic financing of Cataluña- according to the principle of solidarity
and equilibrium (art. 2nd SC) means a just and adequate economic system

Fiscal co-responsibility in the period 1992-2006

In the period 1992-1996 the distribution of the financial resources consisted of

12,72% tribute recourses of the Generalitat and 87,28% state’ transferences, by that time the
head of government was Felipe Gonzalez and the minister of economy Pedro Solbes, by the
following legislature headed by Jose Maria Aznar in the government and Rodrigo Rato in
the economy in the period 1997-2001 the tributes recourse of the Generalitat increased to a
percentage of 30,39% whilst the state’ transference decreased to 69,61% leading to a
greater increase of the tributary recourses of the Generalitat during the second governance
of Aznar (in the period 2002-2006) when the ministry of economy was held by Cristobal
Montoro permitting an uneven increase and greater self-government in the Catalan
administering of finances concretized to a percentage of 68% financial administration by
the Generalitat of Cataluña and a remaining 32% out of central GDP financial transference
to the Generalitat’ administration91.
This process showed the greater decentralization and concessions (within the
period 1992-2006) made by the central government towards the GENERALITAT who
beneficiated of more financial recourses but which even so showed unsatisfied by claiming
a restructuring in the current financial system meaning an almost overall autonomy of the
financial recourses of the autonomous Community of Cataluña (tributes ceded totally to the
state, those ceded partially and the contribution to the fund of sufficiency of the ACs
diminished in the case of Cataluña) due to its greater necessities and social progress, what
they ask for is a personalized fiscal system.

91
Newspaper La opinion, article El sistema de financiacion vingente, “The current financial system”,
March, 24th 2006, page 31.

72
 The new statute incorporates a revolutionary system of financing, but a
transparent, just and in solidarity with the construction of a society more prosperous and in
cohesion. To ensure an economic progress such a new model of financing is needed and
considered adequate to have the education, the health, the infrastructures, the formation, the
new technologies and the necessary stimulus to make up a really economically competitive
Cataluña with potent social policies, with more recourses and capacity of decision. It is
emphasized the good administration of the recourses Cataluña has to fulfill once with this
new financing model. In the realm of financing has come up an associated administration
with the State and has already been fixed the percentage ceded to the Generalitat out of fees
and out of the hydrocarbons.
The financial percentage apportioned to the solidarity fund will not affect the
well-going of the other communities in terms of ordinalidad criteria. The most evident
features of this financing system are the following:
-the Tributary Agency of Cataluña will administrate, collect, liquidate and
inspect all the proper tributes of the Generalitat and by state delegation the state tributes
totally ceded to the Generalitat
-the consortium formed between the Tributary Agency of Cataluña and that of
the State to collect the state tributes partially ceded in Cataluña
-the increase in the imposts pie of the Generalitat to 50% out of IRPF and VAT,
to 58% out of the special fees, fact that will allow a well performing of the recourses and
financial autonomy of Cataluña.
-compensating the recourses per habitant in maters like education, health and
social services of those that all autonomous communities should dispose of
-participation of the Generalitat in state subsidies and European funds
-a mayor responsibility of the Generalitat over the local ranches
-strong augment of state investments in Cataluña in infrastructures with the
compromise that during the last 7 years the relative participation of Cataluña to State PIB
will compensate.

73
 The perspective of autonomic financing already registers a failure after the
calculus of the Catalan administration92 in what supposes the decreasing in the last period of
time of the percentage attributed to the sanity sector, education, social policies, justice and
security, besides the laws of finances re-calculus ceded to this community by the Spanish
state93; a fact that would be taken ahead, implicitly by a pure keynesist economic increasing
reason, through other major expenses as to bring up an economic progress 94 and an
economic prosperity to lift the life standard. According to this theory this might be possible
only with a good efficient administering of the costs and an increasing public deficit,
already high, and only visible on long term.
In what the bad division of the internal GDP for each sector is concerned and
moreover to decrease the costs and the intent to ask for a financial re-calculation through
another model is considered to be just a way to disguise the lack of efficient administration
of the Generalitat.
The concept of self-sufficiency intended to be inoculated by the Catalan politics
to the people in a populist tone (Cataluña- nation- a state within the Spanish state) passes
into an absurd phase and the simple logic that a developed state in bases and within a state is
irreversibly part of this one just as the inter-relational and economic reciprocity links are
strong and existent enough.
Cataluña points out to be a community with greater necessities and fiscal
disequilibrium prejudicing in the wellbeing of its citizens (the GDP per capita is negative:
-3,90) even if the salary per capita is one of the highest 12,0 (calculate din thousands of
euros)95: what they ask for is a model of taxes re-calculation after each community’
characteristics, a personalized fiscal system.

92
´´Informe sobre la Reforma del Estatuto´´, Inform about the reformation of the statute, Generalitat de
Cataluña, coordinator Dr. Antoni Bayona, Instituto de estudios económicos, 2003; page 198 about the
institutional system.
93
According to articles 156.1 SC and 158 SC, the law 14/1996 and Law 21/200 that establishes the
autonomic funds of financing, coordination and autonomic solidarity.
http://www.asturiasopinion.com/article.php?id=251.
94
That in such conditions of incomes’ augmentation the real inflation indicator would also increase.
95
http://www.el-mundo.es/especiales/2005/06/espana/estatutos_autonomia/financiacion2.html.

74
 The controversies that bring up this statute with the proposal of fees re-
calculation is not that preoccupying in itself that is in what the snow ball effect concerns,
that the model started by Cataluña will be followed by the rest of the communities in
statutory proposals with impacting financial requisites for the fiscal balances existent. The
fiscal experts fear that the new financing Catalan model will bring prejudices in the
autonomic solidarity fund, in the redistributive capacity out of GDP to poorer communities,
will generate insufficient recourses to guarantee the basic investments and subsidies and
will also create shortcuts in the inter-territorial shares of financial redistribution, meaning
that the greater the autonomic fiscal capability for Cataluña the lower the apportion of
tributary cessions for the other communities96.
The challenge brought by Cataluña determined the impulse of the other ACs to
start debates over similar quests in the manner Cataluña did, statutory debates concerning
the reformation of current statutes, autonomous financing models, competences, greater
decentralization, the use of the national language of the community in case (Gallego for
example in the case of Galicia) and obviously the controversial denomination of nation in
each case after the historical background considered, be it Galician, Valencian, Andalusian,
Bask or whatever Spain might be composed of in terms of nationalities with reforming
quests for greater autonomy and decentralization based on the issue “we are in condition to
have a statute to better permit us to administrate more and better the recourses” in the same
manner that the closer the administration to the citizen the better apportioned the costs and
incomes per community97.

Predictions

96
Newspaper A Fondo, article Los expertos temen que Galicia salga perjudicada con la financiacion
catalana, “The experts fear that Galicia will get prejudiced with the Catalan financing”, January, 24th,
2006, page 4.
97
Newspaper A Fondo, article El debate estatutario en Galicia, “The statutory debate in Galicia”,
January, 24th, 2006, pages 5-6.

75
 The central administration of the state might loose a 15% from its incomes if
applies the financing model requested by Cataluña in its statute by which a 1800 millions
euro net will start entering in Cataluña’s accounts for autonomic administering whilst the
other communities will receive obviously less (for example with a short calculus Galicia
will get only 800 millions out of this state cession of imposts). The experts estimate to a
18.000-21.000 millions Euros loss in favor of the communities fund in case of the
additional imposts cession predicted by the change in the overall financing model stated by
Cataluña’s financial reform98. The government’ compromise to compensate the historical
debt with a state investment in Cataluña is the biggest achievement: the state public
expenditure should be proportional to the length of the Catalan population within the
Spanish state. The attitude of the central government towards this issue has generated a
serious fiscal deficit (the difference between fees and state’ revenues). The future of
solidarity among autonomies stands in the compatibility of the proper Tributary Agency of
Cataluña with the economic increscent of the most developed ACs (Baleares Islands,
Madrid, Valencia).
The conceived model of financing is one of federal inspiration (the example of
Quebec is taken) where founds in terms of solidarity and collaboration trough multilateral
mechanisms are accepted by the state – but the imagined model is further from the model of
autonomic concertation existent because the weight of each community as political and
economic entities is more obvious and with a mayor independence.

The fund of sufficiency destined to fill those gaps in financial necessities

produced by uninsured cession of imposts has converted into a complementary and mayor
tool of autonomic income financing by trying to ensure the same financing per capita to all
ACs in terms of health, education, and social services ( Nivelation). For this all the ACs
contribute with a percentage according to their recourses to the state fund of sufficiency,
further on the latter is redistributed back to them by the state; the poorer communities enjoy
98
Newspaper El Mundo, article El estado perdera el 15% de sus ingresos si se aplica el modelo a todas las
autonomias, “The State will loose a 15% if the new financing model will be applied to all the
communities”, January, 12th, 2006, page 12.

76
the situation, whilst the richer are unsatisfied with it because they pay more and enjoy the
same, this consisted in a reason for Cataluña, if Catalan citizens produce more then the
media of other ACs citizens why to enjoy less or the same as others and not according to
their high incomes? The Tributary Agency creation is stipulated in the new juridical text of
reform with the aim to administrate the proper imposts of Cataluña, the ceded imposts and
the patrimony in consortium with the state and in parity with this.
Moreover out of the text, in juridical terms would enter the judicial power
decentralization, the sporting Catalan selections and its international role, the Catalan
circumscription to the Europeans elections, the regime of ports and airports administering
and the cession of this infrastructures99.

Market unity, bilateralism

The economic competences attributed to the Catalan government might trespass

the constitutional principle of market unity, moreover the Spanish Bank governor, Jaime
Caruana warns on the possible “fragmentation of the financing system” supposed by the
instituted system contained in the Catalan Statute of Autonomy. On bilateralism Cataluña is
attributed the right to negotiate the revision and adoption of new international treaties,
disconnecting from those decisions adopted by the states and other ACs if not agreeing with.

Declaration of the government of Cataluña

99
Newspaper 20 MINUTOS, Thursday 25th of May 2006, page 8.

77
 When the statute of autonomy for Cataluña got to the final phase of the
parliamentary discussion at the moment of the definitive approbation within referendum; the
matter entered in the General Commission of the Autonomies who posed the text seen by
the ponence who designed it previously to the Congress of Deputies approbation. After the
result proved positive the Plen of the Senate voted upon it on the 10 th of May. The
approbation in the Senate enforces the statute with full virtues to be applied and to serve to
all the Catalan citizens after these pronounce themselves in referendum.
The incentive of this new statute was one of the central compromises to the
Tinell Agreement, fruit of parliamentary majority groups. On the shoulders of the Catalan
politicians rests the decisional responsibilities to ramify the further application of the
institutional disposal of the statute and to enable the convocation of the referendum for the
statute on day 18th of June. From that moment on in the hands of the citizens is left the
responsibility to profit and appreciate the virtues of the statute they vote and accept. All
capacities and resources are delegated to the people fro whom the statute was created. The
statute will concretize the efforts by which politicians and people have envisaged a better
policy in those fields of interest for the Catalan autonomous community.

The preparatory campaign prior to the referendum-one month before (May 2006)

For the Populars the text continues to be considered unconstitutional, the ERC
party, first supporting the statute now considers it the reverse of their initiative. The political
atmosphere was not by far one of cohesion and to bring support to the approval in
referendum of the statute. The ERC party exclusion from the tripartite generated the
summoning of anticipated elections, caused a critical crisis within the Generalitat and the

78
slogan chosen by the PSC in the campaign was “the PP will use your no against
Cataluña”100.

5. The Referendum: convocation and results or the advance of the

autonomic Spain

Opina opinion polls Institute revealed one week before the date of the
referendum the low rate of participation, only 53% of the Catalans opted a yes for the new
statute, whilst 16% of the subjects of the sample (1000 subjects) said they will vote a no in
support of the statute. All these in the circumstances in which only 1,6% of the whole
Catalan population was not aware of the existence of the referendum on the 18 th of June and
other 98,4% were aware. The majority of the people, 79,9% believed that the statute will be
approved in referendum and that its approbation will be positive for Cataluña, for 73% and
in solidarity with the rest of Spain, 66,7%. With respect to the term nation inclusion in the
preamble the uncertainty lies among the Catalans, this might say a lot about the Catalan
identity as long as only 32% considers it good101.
In accordance with 2/1980 O.L. from the 18th of January (regulating the distinct
modalities of referendum) on the 3rd of July 2006 the Central Electoral Office president
(Junta electoral central) within the congress of Deputies session was officially
acknowledging the results of the referendum concerning the Statute of Autonomy for
Cataluña convoked on the 18th of may by Decree 170/2006 of the Generalitat of Cataluña
and celebrated on the 18th of June 2006 and it was declaring definitively the expressed
results and forwarded the publishing of the decision within the B.O.E. 102

100
Newspaper 20 Minutos, article Los politicos se enzarzan en Cataluna a un mes del referendum, “The
political parties clash in Cataluña to one month distance from the referendum”, 19th of May, 2006, page 7.
101
El Pais Newspaper, El referendum del estatuto Catalan, “The referendum of the Catalan statute”,
Barcelona, 11th of June, 2006, page 28.
102
Diario Oficial de la Generalitat de Cataluña, “Official journal of the Generalitat of Cataluña”, num.
4676, 14th of July 2006.

79
 The results of the referendum in the four provinces of Cataluña (meaning
Barcelona, Girona, Lleida and Tarragona), according to the Generalitat of Cataluña’s
polls counted with:
Votes in % Barcelona Tarragona Lleida Girona
yes 73,95 72,39 74,67 74,64
no 20,81 22,51 19,55 19,24
blank 5,24 5,10 5,78 6,12
participation 49,26 48,12 51,58 50,72
As it can be seen the participation ranged at half of the population in referendum.
The votes in favor in average of 73% have given the yes approval to the statute in the
current format.

Making a comparison between the 2006 and 1979 statute referendum we see the
followings:
Votes in % 2006 statute 1979 statute
yes 73,90 88,15
no 20,76 7,76
blank 5,34 4,09
participation 49,42 59,7
The 2006 statute referendum beneficiated of less 10% participation then the one
in 1979, whilst the votes in favor exceed a 88%, a 15% higher difference for the 1979
statute, also the against votes present a gap in the consensus of the population to the
statutory text, only a 7,76% for the 1979 statute, meanwhile the 2006 statute counted with a
high percentage of 20,76% votes against.
Cataluña gained the support of the Catalan people for the approval of the statute
reform. It obtained a percentage of 74% votes in favor but with a only 50% participation.

With a less then 50% participation, a fact that discredited the scrutiny as the
preoccupation of the people for the statute is so low, even previous empirical research over

80
the referendum showed a low interest and a high rate of error taking into evidence the small
sample of subjects questioned103.
The acceptation of the electorate was needed for Catalan to end the legal
procedure of taking off a statutory text that would ensure it a status of extended autonomy
with enhanced fiscal, judicial and administrative competences, actually with stronger
identity among the other autonomous communities.
Once approved the Catalan statute in referendum day 18 th of June the text is
published in B.O.E. the following day and the statute enters into force only after 20 days, a
term given by the constitution for each piece of legislation to become applicable, meaning
day 19th of July, 2006 in the form of Organic Law 6/2006 of the reformed statute of
Autonomy of Cataluña104.

The political effects of the statute got concretized with the rupture of the Catalan
parties tripartite (PSC-ERC-ICV), the loss of the ERC support by the central government and an
obvious and immediate contagious process of reforms visible for the other ACs like Galicia,
Andalusia.

6. Recourses of unconstitutionality brought to the newly enforced statute (the

Organic Law 6/2006 of the reformed statute of Autonomy of Cataluña)

The government asked for extra official consultations to Rubio LLorente, the
State Council President and the former member of the Constitutional Tribunal, taking into
evidence even from beginnings of 2006 the possibility for the PP party to interpose recourse

103
El Pais Newspaper, El referendum del estatuto Catalan, “The referendum of the Catalan statute”,
Barcelona, 11th of June, 2006, page 29.
http://www.elmundo.es/elmundo/2006/06/18/espana/1150653842.html
104
http://www.gencat.net/eadop/imatges/4637/06131057.pdf
http://www.boe.es/boe/dias/2006/05/19/pdfs/A19072-19113.pdf

81
of unconstitutionality to the Catalan constitutional text as their hostile attitude towards the
statute was consistently persisting, moreover the executive transmitted the availability of
such a risk to the Catalan parties.
The president of the executive, Zapatero has played a very active, but reserved
role in the process of the statutory procedure of votes and sustenance. When a constitutional
text is passed in the Congress and thereafter approved by the Senate as well, after the
referendum or even before a party can object on bases of unconstitutionality in front of the
Constitutional Tribunal and the process of entering into force of the juridical text is blocked
up till the Constitutional Tribunal sentences upon the issue presented, that may take months;
such a action is not in the benefit of those who support the idea of a constitutional reformed
text and can even make the latter to loose grounds or credibility. In this aspect the Catalan
parties were counting upon the covered support of Carlos Viver 105, a former magistrate of
the Constitutional Tribunal and the author of the initial report when the statute was
delivered in September 2005 in a more constitutional viable form because the less amended
is a text the better, as we know a piece of law is better applicable as less interpretable it
becomes.
Before the new Catalan statute entered into force the popular party recourse to
the Constitutional Tribunal in order to be declared unconstitutional the adoption of the
Catalan statute106.
The critics of the conservative opposition (the Popular Party) augmented to such
extent as recourse of unconstitutionality was interposed by the PP in front of the
Constitutional Tribunal. Even if the recourse interposed on the 15 th of march 2006 against
the statute’ tabling was dismissed by the Constitutional Tribunal on the 30 of July 2006 the
PP party presented its objections towards the Catalan approved statute and presents its
claims in front of the Constitutional Tribunal for the “liberty and basic equality of all the
Spanish people” altered by the insertion in the statute of the use of Catalan as an imposition
creating a distinction in languages along with the regulation of a new judicial power who
105
Newspapaer El Mundo, article El Gobierno hizo consultas extraoficiales a Rubio Lorente, “The
government asked for extra official consultations to Rubio LLorente”, January 23rd, 2006, page 12.
106
http://www.parlament.cat/portal/page/portal/pcat/IE03/IE0310/IE031006

82
might fracture the unity of Spain and question its independence and division of
competences. The PP’ recourse of constitutionality contains the residual consequence
Cataluña represents, in their opinion in terms of a privileged reformed statute in comparison
to the other ACs. Also the financing system is not a mater of constitutionality in PP’s
concern. The interposition of the recourse remains opened for the Constitutional Tribunal to
sentence upon.
Even months afterwards its application the Catalan reformed statute did not
escape interposition recourses of unconstitutionality coming from the other ACs (like
Murcia, Baleares Islands, Rioja, Aragon, Valencia) and even the Defensor del Pueblo
(Public advocate of the Spanish nation) against certain articles and dispositions contained by
the statute. The reasonable explanation is that the applicability of the reformed text in
practice encounters serious difficulties not envisaged, what leaves room to clashes among
Cataluña and the other communities in various aspects, clashes between the Catalan political
class and the PP party and also clashes between the Spanish nation and the privileges
Cataluña is considered to its citizens now via this enforced statute; all these possible due to
the possibility that each Spanish citizen can interpose a recourse of unconstitutionality
regarding an issue if feels its principles and integrity threatened by a law or regulation. The
openness of such a juridical procedure steps into the delay with which the TC solves out all
sort of intercourse107.

The process throughout Cataluña reformed its statute meant a political

compromise for the ruling socialist party due to the PSOE’ debility caused by the
dependence to the political pacts made with IU_ICV and ERC parties and a tense climate
with the opposition of the right (promoter of centralization-the PP party).
The elaboration and support brought to the Catalan statutory text was based on
economic, law, finances experts as to therefore infringe any kind of critiques. The only
ungrounded critique was that of the PP party nationalists who considered the statute a tool
for Spanish federalization, separatism, inequality and other type of discrimination not in
107
http://www.boe.es/g/es/bases_datos/doc.php?coleccion=iberlex&id...

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conformity with their party’ axiology. The PP profiled the idea of a referendum in which the
entire Spain to be questioned upon the approval of the Catalan reformed statute.
The attempt of the General Council of Judicial Power, the organ of government
of the judges, to emit a juridical study report questioning the constitutionality of the statute
approved in the Catalan Parliament and remitted to the Cortes has not been quested by the
Congress and above all this one expressly asked the members of the General Council of
Judicial Power to abstain from citing opinions on bases of the text , despite the 19 reasons
elaborated within the judges’ analysis considering the proposal of reform unconstitutional108.
The PP considers that the adoption of the new statute of autonomy for Cataluña
in the current format represents a parallel constitution to the Spanish one and poses a threat
to the model of the autonomic state and is contrary to the Charta Magna. The principles
expressed by the statute are considered to be altering the territorial system and to break the
mark of competences attributed to the state, fact that inevitably are thought to bring out
conflicts. The recourse of unconstitutionality constituted 451 pages, the signature of more
then 100 popular party’ deputies and is headed by the secretary of autonomic policy of the
PP, Soraya Saenz de Santamaria and Federico Trillo.
The recourse of unconstitutionality attacks the full content of the statutory text
with emphasis on the term nation-objecting that there is no other nation then the Spanish
one, on the Catalan language regulation and concerning the judicial power.
The statute stipulates a proper judicial power and form of financing and produces
a rupture in what equality supposes for all the other autonomous communities.
The popular party supported their effort on the ignorance of that half of Catalan
people who did not vote on the day of the referendum.
The PP wants to promote a constitutional security for the Spanish citizenship in
the future and this with the support of all 17 autonomous communities reaching such
consensus.

108
Newspaper 20 Minutos, article Los jueces , contra el Estatuto, “The judges play against the statute”,
January , 26th, 2006, page 9.

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 The entering into force of the new statute

This act was celebrated in Sant Jaume de Frontanyr (Barcelona) where the
president of the Generalitat Pasqual Maragall affirmed that throughout this statute Cataluña
seems more to a state of the E.U. in the sense in which Cataluña is considered and euro-
region109. By the power ceded to the Generalitat through the statute the state remains
residual in certain competences matters and the Generalitat is given the right to spend 80%
of the GENERAL INCOMES. According to Maragall’s speech on the day of the celebration
Cataluña will develop a new system according to necessities with a small package of laws to
not loose the strength of the facts.
Months ago, especially in January of the same year, the statutory pact between
Zapatero and A. MAs was more a doubtful and precipitated procedure because now
Cataluña beneficiates of enhanced competences, Spain as state remains residual and no
other autonomous communities by the legislative power it has seems more to a state as
Cataluña seems.
The ceding of competences towards Cataluña was perceived as an understanding
from the part of the friendly Spanish central government who ceded them an increase in the
percentage of public expenditure, competences and the ability to create posterior laws in
various fields after the adoption of this statute.

109
Only 7 of the 29 habitants of this small village Sant Jaume have voted in favor of the statute in
referendum.

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 The most ambitious statute of all the times

Cataluña, or the Catalan nation has been conferred thorough this statute the
maximum sovereignty possible in Europe.
The statute after its approval has been considered the tool to proportionate to
Cataluña the maximum recognition of the own identity, to the extent the state' realities
allows and the internalization of treaties as well.

7. The 1979 statute of autonomy of Cataluña/ 2006 statute of autonomy of

Cataluña

Lastly a parallel between the former and the current statute will be presented as it
follows in the consequent realms:

1. The definition given to Cataluña

In the statute of 1979
Article 1. “Cataluña as nationality and to accede
at the
level of self-government is constituted in
autonomous
community in accordance with the SC and the
current statute which is the basic institutional
role of
norm.
with this
Art. 1.3:the power of the Generalitat rise from
the Constitution, from the current statute and
2006 statute
Preamble: the parliament of
Cataluña embodies the
will of the Catalan citizenship who defined
Cataluña as a nation in majority...
Art. 1: Cataluña as nationality exercises the
self-government in the form of autonomous
community in conformity with the SC and
statute (basic institutional norm).
Art.2.4: idem

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 people
Art. 4: the flag of Cataluña is traditional Art.8.1: national symbols: the flag, the
holidays and the hymn.
New: the incorporation of the historical rights, in the 5th art. The form of self-
government of Cataluña originates also in the historical rights of the Catalan people, in the
sieve of secular institutions existent in Cataluña, in the juridical Catalan tradition, and
derives from the recognition of the singular position of the Generalitat in relation with the
civil right, language, culture, the projection of these in the educational realm (art.2).

2. The languages of Cataluña

1979 statute 2006

Art. 3.3: the Generalitat will guarantee Art. 6.3: the Generalitat will forge the
the normal use of official recognition of the Catalan in the
both Catalan and castellan languages and European Union and the presence
will forge and use of Catalan within international
the plenty equality of both in what rights and organisms and and international treaties with
duties cultural of linguistic content.
of the citizens are concerned
New: art. 32: rights and duties concerning the know and use of language
promoting the non-discrimination on language reasons
Art. 33: linguistic rights in public administration and state institutions
Art. 34: linguistic rights of consumers and users
Art. 35: linguistic rights in education
Art. 50: application and diffusion of Catalan
Art. 143.1: the Generalitat is given exclusive competence in matters of the
language including the use of it at juridical level, linguistic normalization, law and justice
(art. 102.1).

3. Rights, duties and guiding principles

A New title dedicated to the incorporation of rights and duties of the citizenship
as well as principles that aspire to public actions:

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 Within chapter 1; rights and duties in the social and civil realm (articles 15-28)
referred to rights of the persons, of the family, minors, elders, women, education, culture,
health, social services, work, consumers, users, nature and dignity.
Chapter 2nd referred to rights in the political realm and of the administration
(articles 29-31).
The 3rd chapter refers to the linguistic part, whilst within the 4 th chapter the
statutory rights and duties are guaranteed. And within the 5 th chapter are displayed the
guiding principles for persons, families, sexes, cohesion, welfare, education, research,
culture, territorial equilibrium, development, mobility and life insurances, diffusion of the
Catalan language, social-economic cooperation, historical memory, access to information
and communication and patterns of development.

4. In local and territorial organization

1979 2006
Art. 5.1: The Generalitat can structure the Art. 2.3: Municipals, vegueries, comarcs
territorial organization into municipals
and the
and
comarcs or supracomarcs as well. other local institutions the law regulates in
accordance with the statute with no
prejudice to
their autonomy.
Art. 83.1: Cataluña structures the territorial
organization in municipals and vegueries.

Main new aspects:

The new statute recognizes the autonomy at local level. In this sense the explicit
reference to competences and authority includes the financing competence and the
sufficiency of recourses.
Chapter 6- treats about the local government and regulates the organization of the
local government of Cataluña, the local competences, the council of the Local Governments,
the municipals and the municipal autonomy, also principles of organization, differentiation,

88
functioning and normative authority; a special regime for the municipal of Barcelona is also
regulated.

Title 6. Chapter 3rd – the finances of the local governments

The new statute designs the bases of the territorial organization of Cataluña
The municipalities: is the local base of the territorial organization of Cataluña
(art.86)
The veguerias: acts for the intermunicipal government of local cooperation and
for the territorial division of the Generalitat (art. 90)
The comarcs: at local level is formed by municipals and helps at administering
the competences and municipals services (art. 92).

5. The judicial power

1979 statute 2006 statute

Art. 19: the superior tribunal of justice of Art. 95: the Superior Tribunal of Justice of
Cataluña is Cataluña
the jurisdictional territorial organ invested with 1.is the jurisdictional organ of judicial competence
procesal instances in the terms the art. 152 of SC from Cataluña and has competence, according to
offer the correspondent organic law to acknowledge the recourses
to the current statute. and procedures in various jurisdictional orders and
the tutelary of the rights given by this statute.
2. the Superior Tribunal of Cataluña is the last
jurisdictional instance of all the processes initiated
within Cataluña, and of the recourses passed in this territory,
following the right invocated and applicable according to
the organic law of judicial power without
prejudicing the competence reserved to the Supreme Tribunal by
the unification of the doctrine.

Main new aspects:

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 The new statute collects the figure of the superior fiscal of Cataluña and of the
council of justice of Cataluña
Art. 96.1: the fiscal or the superior fiscal of Cataluña is the fiscal as the figure of
the superior tribunal of justice from Cataluña, representing the fiscal ministry of Cataluña is
designed according to the terms its organic statute establishes.
Art. 97: the council of justice of Cataluña is the organ of government of judicial
power in Cataluña, acts as an organ decentralized from the General Council of Judicial
Power.

6. Competences
Whilst in the statute of 1979 the Generalitat of Cataluña was invested with
exclusive competences over a limited number of fields concerning the territory, the shore,
the urbanism and the living (Art. 9), the statute of 2006 develops a series of new
competences. The article 137 of S.A.C. regulates the exclusive competences of the
Generalitat for the social living, territorial planning, infrastructures, telecommunications,
innovation and technological maintenance, administrative regulation of the commerce. The
new constitutional text also contributes to amplify and guarantee the competences of the
Generalitat of Cataluña as to follows:
-Uses as a legislative technique the detailed definition and specifies the sub
matters of each competence.
-establishes a typology of competences: exclusives, (in the art. 110), shared
(art.111) and executive competences (art. 112)
-takes authority over the state competences of infrastructures (art.114)
-precise the territorial authority competence
-recognizes the possibility to realize the external actions derived from the
competences of the Generalitat (art.193).
A few examples of the incorporated competences in the statute conferred to the
Generalitat for exclusive or compacted administration: in agriculture and forests (art. 116),
waters- exclusive competence (art. 117), commerce- exclusive competence (art. 121),

90
autonomic popular consults- exclusive competence over the setting of the juridical regime
(art. 122), cooperatives and social economy -art. 124, immigration- exclusive competence
(art. 138), environment -art. 144, landscape -art. 149, is a new exclusive competence,
religious entities- art. 161, security, public security, police, judicial investigation -art. 163-
164, social insurance-art. 165, the promotion of the families and the infancy- is a new matter
of competence established for the Generalitat in the statute -art. 166, transports -art. 169,
jobs and social relations -the Generalitat assumes executive competences in themes of active
job promotion policies of labour (art. 170) and universities, regulated in the art. 172
recognize the compacted competence of the state and the Generalitat.

7. The relations with the other autonomous communities, the state and the
European Union
1979 statute 2006
Art. 27.1: into administration the services Art. 174, 1: the state and the Generalitat can rely on
correspondent to the exclusive competence of the
mutual help and cooperation
Generalitat this could celebrate covenants with other
2. relations of cooperation can be settled to give out
autonomous communities.
2. The Generalitat could also establish agreements common policies
of cooperation with other autonomous communities
3. The Generalitat participates in those institutions,
with previous authorization of the General Courts.
organisms and procedures of decisions of the state
3. The Generalitat of Cataluña will adopt the
necessary measures for the execution of the affecting their competences, conforming to the laws
international treaties and covenants that will affect
and statute.
the matters attributed by competence.
The further articles 175-183 contain tools of

collaboration, regimes of covenants, agreements

between state and Generalitat and regulation of the

bilateral commission Generalitat –State.

With respect to foreign relations the new statute

develops the capacities and tools of the Generalitat

in this realm:

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 Art. 193.1: the Generalitat has to impulse the

interest of Cataluña outside, but respecting the

competence of the state in foreign relations.

2: the Generalitat has the capacity to overtake action

in the limit of its competence or via the organs of

the General State Administration

Articles 194-200 concern the foreign offices of

Cataluña, participation in international organisms

and international projection of the organizations of

Cataluña.

The new statute defines a juridical mark of bilateral and multilateral relations with the

state:

Art. 3.1: the relations of the Generalitat with the State are based on the principle of

mutual institutional loyalty and rest on the general principals of autonomy, bilateralism,

multilateralism and the one by which the Generalitat is considered state.

The new statute collects references in the ambit of the European Union:

Art. 184-192:

The Generalitat participates, as far as the statute and the laws allows it, in affairs with

relation to the European Union that affect the competences and the interests of Cataluña,

participates in treaties of the E.U., in forming the position of the state towards national interest

issues, participates in European institutions and organisms, in controlling the subsidiary and

proportionality principles, developing and applying the E.U. law, European funds administration,

actions in front of the Tribunal of Justice and it also includes the formation of a delegation of the

Generalitat in the European Union.

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 8. Financing
1979 2006
Second additional disposition: the exercise of The new staute of autnpomy edited the current

financial competences recognized by this statute for text f the LOFCA(the organic law of finacing
the Generalitat will be adjusted in the terms the
for the autonmosu communties) as it follows:
organic law is referred to the art. 157.3 of the
Art. 201.1: the relation of tributary and
Spanish constitution.
financial order between state and Generalitat
Art. 45: when the shift of services is completed the
come regulated by the Constitution, by this
annual participation to state incomes shall be
statute and organic law (with reference to art.
negotiated on several bases:
157 SC).
a) The media of coefficients of population and fiscal

effort of Cataluña, measured through the fee The new statute establishes criteria of solidarity

collecting over the territory over the renda of and defines mechanisms in such manner to not

physical number of persons. penalize those communities who make a major

b) The equivalent quantity to the proportional fiscal effort.

apportion that corresponds to Cataluña of the Art. 206.1: the level of financial resources the
services and general responsibilities that the state
Generalitat disposes shall be based on necessity
continues to assume as its own.
and fiscal capacity
c) The principle of inter territorial solidarity to
2: the Generalitat participates in ceding tributes
which this constitution refers will be applied in
to the state. The percentage of participation is
function of the inverse relation of the real renda
established according to its services and
over the inhabitant of Cataluña with respect to the
competences.
rest of Spain.
3: the financial resources the Generalitat

Third additional disposition: disposes can be adjusted because the state

2: as to guarantee the financing of similar financing system of financing benefits of sufficient

services a Mixed Parity Commission State- resources to guarantee the solidarity and
Generalitat will be created.

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 nivelation in all the other ACs in what services

are concerned (education, health, social

services, welfare). The levels of fiscal effort are

established by the state for each community.

4: determining the mechanisms of solidarity

nivelation transparently

6: the number of immigrant population will be

taken into consideration, the differential costs

and demographic variables, th density, the

urban nucleus as well in calculating the fiscal

effort of participation.

The statute emphasizes the relations with the

state and offers an important role to the Mixed

Commission of Fiscal and Economic Affairs

State-Generalitat, a bilateral organ of the

Generalitat in relation with the state

administration in the autonomic financing

ambit.

The new statute for Cataluña guaranties that the incomes of the Generalitat of Cataluña

will come in majority from those fees the citizens of Cataluña pay. The quota of participation of

Cataluña is fixated by the state. With the additional disposition 8 th (IRPF)-the first law project to

cede fees was approved once with the current statute and it contains all the previous law prescribed

and a percentage of cession of imposts over the renda of 50% for physical persons.

The 9th additional disposition (for special fees)-is the first law project to cede fees, it

was approved once with the entrance into legality of the current statute for Cataluña and contains in

94
addition to the application of the 7th disposition a percentage of 58% cession from the imposts of the

hydrocarbons, tobacco labor, alcohol and other drinks.

10th additional disposition- concerns the cession of 50% imposts from the VAT.

The new statute offers to the Generalitat the capacity to administrate the fees that the

citizens of Cataluña pay. These create the Tributary Agency of Cataluña that will recover the proper

tributes and those cede totally. A parity consortium between the state agency and the Catalan one

should be constituted in order to administrate the rest of state tributes after provenience.

Art. 204: to the Tributary Agency of Cataluña corresponds the following:

administration, recovering, liquidation, inspection of proper tributes of the Generalitat, state’

tributes ceded to the Generalitat; and in two years time should be constituted a new consortium of

parity participation between the state administration and tributary agency and the tributary agency

of Cataluña. The consortium may be transformed into the tributary administration of Cataluña.

-the new statute prescriptions regarding the state’ investments in Cataluña:

The 3rd additional disposition: the investment of the state in Cataluña’s infrastructures,

(excluded the fund of inter-territorial compensation) have to be reinvested in some other targets or

can make a counter-balance by involving Cataluña in a relative participation with its PIB along the

State’ PIB into common projects for a determined period of time.

The principle of institutional loyalty is regulated in the new statute in the same manner

as the impact any state law has over the incomes or costs of the Generalitat. The art. 209 values the

financial impact, positive or negative, that the general dispositions approved by the state have over

the Generalitat or those approved by the Generalitat have over the state in a determined time period,

an impact assumed in the form of the variation of the cost necessities or the fiscal capacity as to

establish the necessary adjusting mechanisms.

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 The new statute establishes that finances of the Generalitat cannot result discriminated

in comparison with other ACs, in conformity with art. 201 -stating that the financing of the

Generalitat should not be confronted with discriminatory effects as long as Cataluña respects the

other communities (in agreement with the art. 138.2 SC). This principle respects the criteria of

solidarity enunciated in the art. 206 of the statute.

9. The possibility of reform

The 7th title of the SAC contains two procedures of reforming the current
presented statute at the initiative of the Ayuntamientos (Mayor Halls) and in
both cases a referendum is included.

IV. State consolidation

Finally I will present the way the state is consolidated in any way, even if the
autonomic degree is not a uniform one, the Spanish state is a unitary state in the end.
The Spanish state is the adept of autonomy, an evolving autonomy enabling
development. The constitutional Spain regulated by the 1978 SC is kept tight exactly
through this conglomerate of identities, backgrounds and tolerance displayed and cultivated
due to the same 1978 feeling that “all Spanish people are equal in front of the law… and no
attempt of the person to develop the self must be infringed” (chapter II, title I S.C. - rights
and liberties).
The Spanish autonomic model is much closer to a federal version in what

96
concerns the direct participation of ACs in governing skills of the state like Senate, Justice
affairs, administration, Constitutional Tribunal, central bank and others, added to a bilateral
consensus needed to enable a statutory reform in terms of competences, meaning that both
at state and autonomic level of political power the consensus must be reached. As we have
seen such reform if admitted as viable it is passed throughout a minute juridical process.

Consolidation of the autonomic state

After two decades and half the controversies in requesting the competences’
enlargement are still assiduous and launched in a fierier manner. It is considered that still
remains aspects in the administration to be uniformed as to found as much possible the
consensus. If we are to put in balance what has been achieved and what is proposed for
correction we come to the critics concerning the equality of the ACs, the right to self-
determination is precipitated and the concept of divided sovereignty is badly employed as
we already know that the ACs do not beneficiate of sovereignty, these are under the
sovereignty of the Spanish state which already has full sovereignty, a sovereignty which
cannot be split in parts110.

Transition and national sovereignty

The titular of national sovereignty in Spain remains the Spanish people. The
autonomic redistribution of competences “café para todos” is an episode reiterated various
110
The article: “Federalismo y autonomismo- discurso en las Cortes Generales”, Federalism and
autonomy- discourse in the General Courts, the night 25th to 26th of September 1931, page 173 in Ortega
and Gasset (1990) “Discursos politicos”, Political discourses, Alianza, Madrid, 1991.

97
times whenever bursts of autonomy aroused. These processes of statutory reform redirect
the attention of the people representatives (the deputies) towards issues not relevant for all
the Spanish people, especially for those who have no claims to enhance the competences of
their autonomous communities, this aspect skips from view other important issues relevant
for all and centers the focus on only one aspect, as it was the constitutional reform of the
one autonomous community, be it Cataluña or any other one.
Citizens are concerned with aspects much closer to their needs, in this way can
be explained the little interest of voting showed by Cataluña’s citizens in the referendum of
the formerly adopted statute of autonomy for Cataluña. After such process of change are to
be regarded as moments of transition proper to democratic states with democratic
constitutional systems and the national sovereignty shall never be questioned as long as the
procedure to achieve the aim reach democratic consensus, the bases of democracy.
People are concerned with their own community; they are keened on a more
decentralized administration considering that the higher the quota in the public spending
controlled by the state the bigger the centralization, so they prefer the reverse: for the state
to control a smaller quota of public spending as for the people to have larger control of their
financial contributions.
Self-government is a mean to modernize the political organization because
effectively this is the update of the principle of equality in a decentralized autonomic state-
for all the citizens to take advantage of their individual status due to the juridical community
they fit in- is the overall of asymmetry. The immediate effect of such institutional
compilation is the legislative pluralism (the autonomies) with incidence on individual rights.
The negative effect in the subjective perception of the other ACs of the
constitutional value of pluralism is that whenever an AC reforms its statute and implicitly
improves its competencies level these considers the attempt a discrepancy in equality,
rights and mostly privileges, but in fact the situation is distinct because it consists exactly in
a specialty and merit of a good constitutional managing of the wills and incentives of the
citizens of a community of a decentralized system who enables them all with such an

98
ability, that of reforming their statutes and shaping their conduct according to the needs they
have and display throughout a statutory reformation.
Another reason of discontent maybe the already mentioned constitutional status
given to territories with special treatment (meaning the foral, insular communities and those
historically grounded) that abysses the edge of equality. Such inequality and effective
asymmetry has been created once with the 1978 legislative parameters and ever since more
deepened.
The ending of this autonomic model is not even by far close to an end as long as
the art. 150 SC stands viable. An envisaged solution might be the enforcement of the Senate
with real powers, but the Senate reform is not for the first time launched, neither the need of
the ACs to be represented in real terms in this Chamber of territorial representation.
Reforming the composition, functioning, competences and normative of the Senate is a
matter of political class’ will, never reachable into a consensus as long as the Congress
would loose a basically full competence into establishing the institutional configuration
because within a configuration like this: within the Senate- the will of the ACs primates and
within the Congress- the will of the nation is primordial and as long as Spain is an
autonomous decentralized state the Congress would become of a secondary importance
chamber. Never possible as long as Spain is a parliamentary monarchy- based on the Cortes
Generales (the Congress).

An advance for the plural Spain

An advance for a much plural Spain is considered the approbation of the recently
approved statute of Cataluña by the other communities who further on reached the same
juridical consensus in statutes reformation, if in the beginning the statutory reform in
competences and financial claims were considered to bring a breach to solidarity within the
Spanish state, now the example of Cataluña is followed and gave more impetus to the other

99
communities to do the same, a chain reaction for the ACs to reform their statutes into their
benefit, in the benefit of the civil society, in the benefit of the Spanish state per whole, in the
conjugated benefit of the democracy understood and engaged by all.
Various personalities showed satisfactory with the agreement reached by the
Catalan statute and the procedure followed into achieving their objectives, for example the
mayor of Santiago (capital of Galicia) Xose Sanchez Bugallo appreciated as a pathway all
will be guided upon under the mark of the Catalan statute and also emphasized the
difference standing between the Ibarretxe Plan for the Bask Country’ solution to autonomic
claims, on the one hand, and the negotiations held by Cataluña into enabling the statutory
reform as an agreement reached to enhance the existent maturity of the Spanish society, on
the other hand.
Also the president of the Xunta, Emilio Perez Toruriño, appreciated the new
statute for Cataluña as beneficial to all autonomies and rejected the implication of
asymmetries among communities in the case of the financial agreement reached with
Cataluña posing the fact that the model intended by Cataluña is no longer a singularity and
that it consists in an advance for the plural Spain111.
On the way to integrate such territorial nationalisms only permits to allow
statutes reforming are convenient through a constitutional process established by the
constitution, but as long as this process has been so much consumed and reiterated during
the last 3 decades only a change in the institutional configuration may enable all ACs with
equal competences level, an ideal and desired level of equality, but what impedes Spain to
become a federation is the same constitution that gave reason for decentralization and
autonomic conflicts to descend, it secures the form of monarchy, as unitary perception of
Spain and cannot be ever reformed. So the sight of panoramic decentralized state united by
the symbol of monarchy can only reform statutes infinitely. Forfeiting equality is a reason
for constitutional dialog and consensus on the bases of pluralism to admit the autonomies as
providers of democracy because self-determination enabled the elaboration of the 1978
constitution and the consolidation of the autonomic state at that time and ever since.
111
Newspaper El Ideal Gallego, section Cuaderno de notas, “Cadre of notes”, January 24th, 2006, page 30.

100
 The end of pluralism

The 2006 statute of autonomy for Cataluña was a reason of discontent for all the
other ACs but shortly all political forces and citizens realized that such achievements is for
the best of all, is an advance forward of Spanish pluralism and a strengthening of
democratic institutions of consensus.
The syncretism of the Spanish constitution displays not only the German
characteristic its 1978 elaborators have borrowed but also the sense of dialogue, cooperation
and state consensus. We could conclude Spain as being a totally particular state with
autonomic resemblance. No matter Spanish communities at 1978 moment have chosen to
pose institutional limits to the form of the state, that of parliamentary monarchy, but they
have posed no limits to the fond of this, meaning the evolution of the ACs reflected in their
statutes of autonomy according to times and needs, and yes the 2006 CSA adopted is a
reform in depth but not altering the overall unitary shape of the Spanish state.
If Spain as state remains just as unitary after each cut in competences and
reshaping of the institutional configuration on the part of the ACs, the effective asymmetry
is more and more enhanced and each statute reformation supposes a part of that breach in
the central power compactness because each reform takes with it a number of competences
belonging to the state and as long as these are finite we wonder for how long this unity in
constitution, communities hold up compact as state per whole will be preserved anymore.
Unity and transformation are time enduring or radical at once, all possible
changes and interpretations brought to a piece of law (be it constitution or statute) depend
on the will of the political class, of how the central government was ready to accept such
transfer in competences in the Catalan case of 2006 and how these competences in terms of
norms are to become applicable after the approbation of the statute in its final form on short
and long run. Which is the line up to which a political class is ready to make a compromise
or to rise at? If the transforming capacity of the statute stands in the power of interpretation

101
and the applicability of the legal text approved we have a twofold issue, either the statute
maybe given a positive variable within the Spanish ambit or by contrary might turn things
upside down.
Spain is seen to have a solid and shared political culture about values like
decentralization, pluralism and diversity if counting the spending of power invested in
Cataluña. The major achievements of the 2006 statute are the enhancement and
improvement of the Generalitat’s self-government and the most relevant is the wellbeing of
the citizens, an expectation that comes to be fulfilled in practice.
Towards what state organization heads Spain in the next decades (if predictable)
if the last three decades have been so dynamic and problematic, which will be the turnover,
would the Spanish state, in order to preserve its unity, fabricate enough competences for all
ACs as to reach that threshold of equality for all its autonomous communities and in such
case would it be called a federation of communities or these 17 communities in such a
competence equalitarian scenario would be to ensure a self-conduct line?
The above paragraph speculations remain opened, are only part of the immediate
questions that rise when seeing the achievements of the Catalan statute in matters so largely
attributed beforehand to the central administration and which now belong to the Generalitat
all throughout a democratic legislative path available to all the communities.
Taking into consideration the anterior mentioned aspects the following issue can
also be set forward an opened reflection: it might be possible the achievement that all
containing parts (meaning the ACs) to get out of this autonomic game content without
prejudicing the unitary symbolic structure of the Spanish state as state at the international
level? Only the consensus and the democratic negotiation 112 might decide upon.
Lastly I would like to bring forward the following perspective that the experience
posterior to the wilsonian discourse showed us, by the right of self-determination and the
succeeded events of the 2 world wars, that the features of similitude displayed by 2 nations
has not given light to the organization of a state whilst under the institutional cupola of a
112
Posed that the political parties are the mediators of the general interests of all the citizens as a whole and
in part, are they who dictate the progress of a society and who have an influence in the rhythm of the
political decision taking.

102
state favored by the existence of common followed norms and principles the links of a
nation are being created.

Abbreviations and Glossary of terms:

Autonomous community= AC for the singular and ACs for the plural
Art.= article
BOE- Spanish Official Bulletin (the correspondent to Monitorul Oficial in
Romania)
CiU- the convergence and union party
CSA- Catalan statute of autonomy
Enmiendas- to amend an article, a legal text within parliamentary debate
ERC- republican left party of Cataluña
ICV- initiative for Catalan greens party
O.L.-organic law
Nivelation= is an ideal concept by which each autonomous community should
financially participate according to its resources with a higher or lower percentage to the autonomic
financial fund of solidarity as to ensure an equalizing living standard in all autonomous
communities no matter the incomes and recourses.
Ponencies – are high rank groups of specialists temporarily constituted on a
certain matter, selected out of those specialized departments according to the purpose of
their creation (see the S.C. regulating their nomination) or they can be only representatives
of various parliamentary groups.
PPC- catalan popular party
PP= Popular Party

103
 Spanish constitution= SC
Spending power= distribution of competences, a sort of spill-over
Statutory autonomy of Cataluña= SAC
Tripartite- a political compromise of three Catalan parties as to conclude the
achievement of the Catalan proposal for reforming the statute
Xunta= is the correspondent to the Generalitat but in Galicia, each decisional
body in each Autonomous Community wears a name

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 Magazines:

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 PÉREZ ROYO, Javier; Manuel Carrasco Durán, "Regulación en el Estatuto de
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107
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