The Future Of the Constitutional Regions in the EU. Approach to the State of the Autonomies in Spain.
1. – A starting point: the called “democratic deficit” of the European Union.
Our analyses should start in one of the facts that are hindering without a doubt the process of European integration: the low level of democracy in the institutional structure of the European Union (EU). This problem presents two clear dimensions.
Inside the relationship between the States members and the EU.- From this point of view, the democratic deficit has a close connection with the limitation of the state sovereignty that the process of European integration means. The members has to accept decisions taken by the organisms of the UE, decisions sometimes opposed to the democratic will represented by the national Governments.
On the other hand, the transfer of sovereignty to the EU affects negatively to all the territorial entities. As the process of European integration moves forward, the Länders, Regions or CCAA are suffering serious limitations in their regional self-government. Frequently, these entities are not being able to carry out the functions that the Constitutions have given them. The regional Governments have to apply the Community legislation which may be contrary to the democratic will of their respective peoples and electorates.
However, it is unquestionable that the sovereign States of the EU have given up a part of their freedom to decide on public matters. Also, we believe that this renunciation to the sovereign power is perfectly legitimate, because it has been accepted with the necessary democratic and constitutional controls: through constitutional reforms authorised by referendum or by legislation approved by qualified parliamentary majorities.
The democratic deficit in the internal structure of the UE.- The political framework of the EU does not guarantee the traditional principles of a Parliamentary Democracy. The Council (and the Committee of Permanent Representatives) takes the decisions without enough transparency. There are not effective mechanisms of control in the European Parliament, the only institution of the Union that has direct democratic legitimacy. It is not possible to hold to account those political representatives who make the decisions inside the UE.
But the problem is not only the weakness of the control instruments or the limited participation mechanisms inside the structure of the EU. A democracy is not possible without an European demos. A European citizens without capability for taking decision, a European people without an specific “constitutional patriotism” (Habermas), it stands to reason that the national Parliaments try to conserve a large part of the power of the nations that compose this international community. Therefore, the European integration process will be always relative as long as it is not enlarged and improved the democracy in the UE which generate a supra-national political will, different to the national wills that arise from the electoral processes of each State.
For the same reason, as long as it is not solved the democratic deficit of the Union, the citizen will not feel implied in the community policy, he or she will not feel part of a community of that – up to now – fictitious European demos.
2. – Federalism and European Constitution: solutions to the democratic deficit and the most important boost of the integration process
The distance between the European citizen and the community institutions can only disappear -or, at least decrease, – with a new political formula. It is indispensable to reform the systems of social participation in the UE to get active and sensitive citizens with the idea of Europe.
In my opinion, the proclamation of the democrati c principle in the Preamble of the Declaration of Fundamental Rights approved in Nice in December of the 2000 is not enough. We cannot guarantee the true democracy only with the right to participate in the elections to the European Parliament (art.39), above all if then this institution lacks effective competencies. It is no good for the democracy if this institution has not political power to carry out the will of a majority.
Therefore, the question that we should make in connection with this problem is the following one: could a European Constitution solve the democratic deficit of the European Union?
I dare to say that to solve the democratic deficit of the UE it is essential a previous change in its institutional structure. The European Parliament should be the institution that represents the citizens. It should be the real centre of gravity of the European Community. Certainly, this will not be possible without a European system of parties, whereby the demands of the citizens are articulated in global manifestos, different from those presents at national level.
In this context, a future European Federation would surely elevate the levels of democracy and politic transparency. A Federation would have a Government, directly or indirectly elected by the citizens and responsible for its decisions. The States would be represented in a Council. This new and future Council should conserve functions in essential matters; it should be transformed in a Bundesrat, composed by the representatives of the Executives of the States.
In the current circumstances, that European Federal State is a utopia yet; or for the moment, it is a very long-term project.
From a “realistic” point of view, the solution may not be building a new Federal State, but introducing in the structures and in the operation of the EU the principles and the typical instruments of the federalism. It is what we could call “functional federalism.”
From this functional and pragmatic perspective we can observe, in certain way, how some of the principles and elements of federal nature are already within the EU.
Among the structural components that moves the EU closer to a federal model, we should point out, in first instance, the Treaties. The can be regarded as a real Constitution. They represent the superior norm for the legislation of the States members. The effect of primacy and direct effect turn the Treaties into a constitutional law, with similar characteristics and functions that any Federal Constitution.
This supremacy and effectiveness of the Treaties have been confirmed constantly by the European Court of Justice. This institution plays the role, in fact, of a constitutional jurisdiction. The procedures are similar with the ones of national Constitutional Courts and it is endowed -like these – with a “parameter of constitutionality” (the Treaties).
Like in a Federal State, the Court of Luxembourg never carries out a political control, but only juridical, of the acts and norms approved by the state authorities.
Another federal feature of the institutional framework of the EU is the direct election of the European Parliament by the citizens and, the election of the European Commission by the European Parliament. Both institutions, Parliament and Commission represent a European will. Nevertheless, the way of operation of these institutions (Parliament and Commission) contains typical features of a Confederation, in that the parliamentarian and European commissaries frequently act more in defence of the national interests than of the generals of the Community.
At the same time, we can see out another feature of a Federal Constitution in the Bill of Rights of Nice. Before Nice, the guarantee of the European citizen’s rights has been work and responsibility of the Court of Luxembourg, which has integrated the jurispru dence of the European Court of Strasbourg. Nowadays, the EU already enjoy its bill of rights that must be assured to the citizens of each country equally. This equality is a basic principle in any democratic and federal Constitution.
However, in my opinion, there is still a gap which moves the EU away from a classical Federal Constitution. The bill of rights, approved in Nice, is not a legal binding document for the members. On the other hand, the different social and economic realities subsist among the States of the UE and make difficult -if not impossible – to guarantee a basic principle of the Federal States and Constitutions: the uniformity of the conditions of life among the citizens of the states. That real and effective equality, from a social point of view (health, education, social security, etc.), is still an utopia within the EU.
Finally, another federal feature can be found in the distribution of powers inside the European Union. We are not only referring to the principle of community loyalty (art. 5 of the Treaty of the EEC) or the principle of implied powers. The features of a federalist model are present also in the subsidiarity principle. (Normally it is rule that is not been expressly in the federal Constitution, but is in fact present in any federal pattern where the attributions are divided among the Federation and the States.)
But the difficulties for building a European Federation -in a short term or may be also, in a half term- oblige us to analyse other more realistic alternatives. For example, the proposal for the establishment of a more exact boundary of the powers of the EU (Rubio Llorente). The clearest definition of the functions of the European institutions would provide a bigger transparency about the responsibility of the decisions that affect the community citizens. The national Governments would not be able to shield themselves behind the European institutions to avoid the control of their national Parliaments. In order to achieve this objective of higher political transparency, it will be necessary a reform of the Treaties that defines clearer the Community powers. Equally it will require a reform of the national Constitutions specifying which are exactly the limits of the process of European integration (like the Constitutional Court has made already in Germany with the Treaty of Maastrich).
The solution to the democratic deficit needs a new constitutional framework within the EU, for assuring the transparency and the social control. Without these two elements, characteristic of the parliamentary democracies, it will never be able to shorten the distance existing nowadays between the European citizen and the community institutions. The lack of a citizen’s loyalty toward the European institutions and the absence of a community feeling are political problems that we cannot only solve with juridical or institutional answers.
Probably, it will be necessary to begin the reforms at internal level, inside the States, to increase the parliamentary control over the community policies. At the present time, the Executives act practically inside the Council without any kind of control.
Unfortunately, the only experience in this sense in Spain -the Bicameral Commission (Congress-senate) for the EU -has been useless in the practice, since that institution has not played an active role, until now, in the elaboration of the community policy of the Spanish State.
On the other hand, the future creation of the United States of Europe will produce an additional problem for the Regions. The Parliament of a Federation usually has a bicameral structure where the Second Chamber represents the territorial entities. Probably, within this future European Federation the Regions will not have a parliamentary representation, since the second Chamber will be reserved for the representatives of the States members. We are not able to imagine how it w ould be possible to design a federal structure with two levels of territorial representation, one for the national States and another one for the smaller territorial entities o regions (Länder, Regions, Autonomous Communities).
In fact, some of these European Regions (Westfalia, Scotland, Catalonia, Salzburg, Flandes) have demanded major leading roll in the European building. They have already launch some proposals this year in Brussels: their consideration like electoral district for the European Parliament, the capacity to present resources directly before the Court of Justice of Luxembourg, their participation in the future Senate of the Union.
To reach that objective they also lean on a new concept of Constitutional Region, that is characterised by two essential features. First, to become a European Region it is necessary to be endowed with a Parliament and legislative power by the national Constitution; this regional parliament must be elect by universal suffrage. Second,, the Government of these constitutional Regions has to be chosen by the regional Parliament.
Therefore, from this point of view, all the Autonomous Communities (CCAA) in Spain should be classified as Constitutional Regions. Certainly, the CE 1978 had only foreseen a Parliament and regional Government for a type of Communities: the denominated Historical Nationalities – Catalonia, Basque Country and Galicia – and the other Communities that use the procedure of the section 151 of the Constitution to achieve the regional autonomy. Andalusia was the first and the only Community in approving by referendum a Statute of Autonomy with the same powers and the same political institutions of the Historical Communities.
But the Spanish Constitution (CE) had never prohibited expressly the creation of a Parliament and regional governments for the other Communities. Taking advantage of this constitutional silence, UCD (Unión de Centro Democrático) and the Socialist Party signed in 1981 an agreement whereby, with the consent of the majority of the Parliament, decided that all the CCAA would have a Parliament with legislative power, democratically elected and a system of parliamentary government.
In short, I believe that it will not be easy to agree a system of participation of the European Regions in the future phases of European integration. There is no a clear idea about their role in the EU yet. Besides, the high number of territorial entities entitled to act in that process complicate the possibilities to get “regional agreements”. Only in Spain, for example, 17 CCAA fits in the notion of Constitutional Region proposed in Brussels.
We can affirm that a new political order of the UE has already started after the approval in Nice of a Bill of Rights. It is true that there are serious limitations on its effectiveness, but there is no doubt that this has been the first step in the long way towards a future European Constitution.
However, the difficulties come up especially in connection with the political shape of the EU. On this topic, the doctrinal positions are not uniform. Some authors (F.Mancini) consider that the only possible solution is the transformation of the UE in a Federation. Today, this premise is also accepted, in the political sphere, by the called “motors” of the Union (France and Germany), although with some differences.
Other authors defend the creation of a new and different framework from the federal model, and nearer to a Confederation of States (Curtin, Weiler). For these authors, Europe needs a particular institutional framework capable to adapt to a complex reality, endowed with wide powers that do not eliminate, however, the powers of the States.
But in spite of the ” utopia ” it represents yet, the federal system continues being the main reference point to advance in the European integration. The federation has been until now the better political framework for Europe; it is a kind of institutional structure where unity and diversity are correctly balanced.
But we have to recognise that a European Federal State will not fit in the traditional pattern of Federal State, provided by the United States of America. The History has made of our States-nation a reality very different that cannot be erased completely by an operation -using the concept of Sartori – of “constitutional engineering.”
The political pattern of Europe in the XXI century has to be something different. It should be adapted to the national realities and the constitutional loyalties of the citizens with their States. That new form of politics cannot be built without a European system of political parties, where the citizens are be able to recognise the different programs of a “European government.”
3. – The participation of the CCAA in the formulation of the community policy of the Spanish State
I think that the principle of autonomy (in another version, the federal principle or the regional principle) would be the constitutional support of an institutional right for the CCAA to participate with central State in the community matters (E.Albertí).
Therefore, the collaboration of the regions in the European affairs is not only a political demand for the good operation of the States with high levels of decentralisation. Also, from a constitutional point of view, it is a guarantee of the regional self-government. Especially, when the progressive transference of powers to the EU puts in danger the autonomy of the territorial entities. We should not forget that the process of European integration plays against the autonomy of the territorial entities. Step by step, the European institutions deprived them the freedom to decide on the matters that constitutionally belong the Regions (Länder, Region, Autonomous Communities).
In Spain, the participation of the Autonomous Communities in the european policy of the State is carried out through the Sectorial Conferences, These institutions are composed by representatives of the State and the Autonomous Communities.
The way of articulating the vertical co-operation between State and Autonomous Communities has been settled in different agreements between the State and the Autonomous Communities that have allowed the institutionalisation of the important Sectorial Conference for European Communities matters.
In 1994 the Autonomous Communities (except Vasque Country) and the central State signed an agreement that established different mechanism of collaboration between them. This agreement has introduced a group of rules that can be applied in every Sectorial Conference, not only in so called “the ascending phase” (formation of state will) but also in the implementation of the legislation of the EU.
In accordance with that agreement, the will of the Autonomous Communities can be decisive to fix the institutional position of the Spain before European Union. This regional significance only arises when it is about the exclusive responsibilities of the Regions from constitutional point of view. Regarding the shared powers between State and Autonomous Communities, the agreement anticipates the possibility of reaching a common position between the Administration of the State and the ones of the Autonomous Communities. But there is not still any regulation which deals with the potential disagreements between both sectors. So, it has been contemplated the duty of exchanging relevant information, including statistics and research for the adoption of agreements.
The Agreement of 1994 has also come to several commitments to implement the legislation of the EU during the called “descending phase”. For example, the agreement to get equal texts among all the Autonomous Communities in the application of EU regulations or directives; also the re gular and reciprocal information between State and Autonomous Communities about participation in the EU programmes.
However, there is still a lack of a very important instrument, as it would be a Conference of Presidents of the Autonomous Communities, as potential generating centre of impulse and orientation of the collaboration between both territorial administrations. The creation of the Autonomous Communities General Committee, inside the Senate, tries to mitigate this deficiency. (, 55 and the followings, Regulation of the Senate). This institution is trying -in my opinion, unsuccessfully- to settle the Senate as a real Chamber for the territorial representation. The composition of this Committee introduces the innovation of the delegations of the regional Executives (generally the President of the Communities, or any members of the autonomic Executives), together with the representatives of the central Government. The Committee has a wide range of functions (consultative, provision of information and function of autonomic impulse) that turn it into an important forum of debate and discussion between the regional and central administrations.
4. – Regarding some proposals for the future in Spain.The last April -also last week- the central Government has announced in Spain a bill on regional cooperation with several objectives:
- The transformation of the Senate in a real Chamber of territorial representation, to the style of the federal models
- The creation of a new organism of horizontal collaboration between Autonomous Communities, the Conference of Autonomous Presidents
- Reinforcing the political capacity and capability of Sectorial Conferences
- A better delimitation of the constitutional competencies of the State and the Autonomous Communities
- Setting-up better mechanisms of participation of the Autonomous Communities in the community matters, especially inside the council of Ministers.
We fear -also it is an opinion of all nationalist parties- this future Act will be an instrument of the central Government to reduce the levels of regional self-government. May be, with the excuse of putting some order in a quite chaotic division of responsibilities, the central government seeks to carry out an imposed uniformity -and restriction- of the powers of the Autonomous Communities. But this strategy can be unconstitutional. In fact, the only Act approved by the State with this kind of aim- called as Law of Harmonisation of the Autonomous Process – was stroke down by the Constitutional Court in 1983.
However, the Government of the Popular Party probably is trying to avoid the reform of the Senate. That is surely the main problem of the Regional State in Spain. It is not possible to arrive to a federal model if the Spanish Senate does not really represent the CCAA. Neither this institution do have specific functions related with the State of the Autonomies. The aim to become a Federal State is today defended by the Socialist Party. However, during their four consecutive terms in office, the socialist never submitted to the Parliament a proposal to transform the Senate into a real territorial Chamber, such as the Spanish Constitution name expressly.
5.- The establishment of formulas of collaboration between the territorial entities in decisions related to the European Union.
The EU cannot oblige to its members to establish mechanisms which assure the participation of the Regions in the European policies. It depends on national Constitutions. Therefore, only a decision of each State can guarantee a active role of the Regions, Länders and Autonomous Communities in the European sphere. Not only at internal level, that is to say, inside state organs, but also, inside the delegations of the States members in the Council, the Commission or other institutions of the EU. The political future of the Regions in Europe will not depend on a future reform o f the Treaty. The Treaty can allow only the use of participation instruments, but it can never disregard the Law of the States or the will of their governments.
In Spain the Constitutional Court (CC) has defended sometimes the autonomy of the State when it have to apply the Community legislation (for example, in the Sentence 117/1992). However, the Sentences of the CC have left the CCAA room for manoeuvre in the implementation of the European normative. In opinion of the TC, the State doesn’t have an exclusive competence on this matter. Certainly the CE has reserved to the central government the responsibility on foreign policy and international relations.
But the CCAA has also an important function in the called “descending phase” when the States have to apply the Community legislation. And thanks to the CC, nobody argue today in Spain the capability of the CCAA to establish their own Delegations in the European organism.
The same principle of institutional autonomy (or constitutionality) can be used to block any attempt of the EU to force to the Spanish State -and all the States members – to accept the territorial entities into the national Delegation.
I am convinced that the principle of constitutionality set a limit, again, to the process of European integration. A constitutional boundary, possibly common to the other States of the UE.
But the constitutional silence about the mechanisms of regional representation allows to the national and european legislators a wide freedom to organise the mechanisms of State’s representation in EU. There are no obstacles in the national Constitutions that prevent the guarantee of the participation of territorial entities (Länder, Regions, CCAA) within the EU.
Therefore, the EU is able to promote the starting-up of homogeneous mechanisms of cooperation between the central and regional governments on european policies. Logically this regional, state or autonomous presence needs the acceptance of the national States, which are, from a constitutional point of view, the only ones responsible in the international sphere. However, we believe that the participation of these territorial entities is not possible without a regulation of the States members.
In this sense, two tendencies can be observed at the present inside the decentralised States. The starting-up of the collaboration of the territorial entities can be carried out through two systems: a constitutional reform or a parliamentary act.
a) The project of constitutional reform in Italy and the regional participation in the Community affairs.
The regulation in the constitutional sphere is possibly the best alternative to assure a more important role for the territorial entities in the European matters.
Good example of this alternative in the last constitutional reform approved recently in Italy (March of the 2001). The current Italian Constitution establishes that the Regions will participate directly -always on matters in which they have competence, in the European policy, through a procedure provided by a national act.
In addition, the Regions will assume the implementation and execution of the Community Law, in accordance with a “subsidiarity principle”, recognised expressly by the project of constitutional reform.
However, we should remember that in this country most of the power are shared by the State and the Regions; they are not exclusive competence of the Regions. So it is not clear what role the Regions will have in a large number of matters
Finally, the constitutional reform in Italy has established that the central State will replace the Regions -if it is necessary- to guarantee the execution of the Community legislation for that ones. This power is necessary and logical to avoid the responsibility of the State before the Europe an Union.
b) The setting-up of a regional participation through Acts of Parliaments without constitutional range.
This second alternative always requires that the Constitution of the State does not prohibit the transfer of power on this issue to the regions. It’s not possible to find banning in the European context to block the transfer a part of the state power in Community matter to the territorial entities.
In Spain it is very interesting the bill, submitted in this year by the CA of Balearic on participation of the CCAA in the Council of the UE (Full, Committee of Permanent Representatives and Groups of Work).
What is the most significant aspect in this proposal? Irrespective the success of this initiative, one can verify the CCAA desire to get their participation in the Council stated in statutory form.
The bill lay down the obligation of the Spanish State to give information to the CCAA about the beginning of the decision-making process in the European Council.
In this context, the information to the CCAA has been considered as a high-priority question in the Spanish legislation. A Autonomous Communities Delegate has become a member of the Permanent Representation of the Spanish State before the Union. Its main function is to provide information to the CCAA in european matters (Real Ordinance 2105/1996, of September 20).
Second, the bill recognises the right of the CCAA to be part of the delegations of the Spanish State in the Council, when the matter discussed in the Council affects to exclusive competencies of the CCAA.
First of all, it is important to underline the concept of “exclusive power” (whether of the Region or of the central State). This is an usual category establishes in the Constitutions of all decentralised States of the UE (Germany, Italy or Spain), besides the exclusive attribution of the central State and the shared attribution between central State and the other territorial entities.
Under the terms of the Bill, the regional participation in the Spanish delegation will be carried out through a representative of the CCAA acting as a “member of full right”. However, this formula has not been stated in a very clear form. The bill only points out that the autonomous representatives will have immediate access to the information and documentation of the meeting, they will take part in the deliberations and, even, they will be able to lead the negotiations. But there is no prevision about the consequences in case of a possible disagreements between the regional representatives and the state representatives. The effect of this difference of position before the Council would give us the exact meaning of that “representation of full right.”
The bill has also laid down another mechanism of regional participation when the object of the meeting in the Council affects to shared powers. In this second case, the CCAA is only entitled to integrate the Spanish delegation before the Council and to take part in the deliberations through a regional delegate.
Finally, it remains a last possibility: if the question discussed in the Council only affects exclusive powers of the state. In this case, the position of the delegate of the CCAA in the Spanish team will be limited to a simple spectator; it cannot participate in the deliberations.
What conclusions can we extract of this system of regional participation and what problems can we expect that raises its implementation?
First, this Bill represents an advance with regard to the current situation, because, nowadays, Spain lacks a mechanism that guarantees the participation of the CCAA in this fundamental institution of the UE.
On the other hand, this regional collaboration is sufficiently justified as long as the Council normally debates a large series of matters whose competence belong to the CCAA.
However, the implementation of this mechanism of regional collaboration can drive some problems. Firstly – may be the more serious- one is caused by in the enormous ambiguity of the constitutional distribution of powers between State and CCAA. It is not easy to specify if the Spanish Constitution attribute the power to the State, to the CCAA, or, to both of them concurrently. After some years of operation of the system, the Constitutional Court has not been able to clear the boundary.
In my opinion, most of the matters discussed in the Council will be inside the category of “shared power”. Therefore, the level of participation of the CCAA will be restricted to take part in the debates and deliberations, but without capacity of decision.
Another problem is the difficulty to co-ordinate the CCAA, and CCAA and State.
In Spain each one of the 17 CCAA has never had the same powers. This means that the matters discussed at the Council will affect them in a different way and with different intensity. The matters discussed at the European Council can be exclusive for some CCAA, shared for others. Therefore, the its participation inside the Spain Team will depends on the category of the power, exclusive or shared.
What is likely to happen is that all the CCAA will have competence on the matter, but it will be quite difficult to agree what region will send the delegate who will represents to all of them. Depending on the matter, some CCAA might be more interested than others in obtaining the representation before the Council. This problem is not solved in the bill submitted to the central Parliament, which only state that the appointment of the regional delegate will be decided in the respective Sectorial Conference. That means that the rules and guidelines for the election and appointment of the autonomous representation will be agreed in the so called Conference for Matters related with the European Communities.
Regarding the co-ordination among the territorial entities, the bill has contemplated the obligation of the autonomous representation to inform and to account to the other CCAA in the Sectorial Conferences.
Inside the state Delegation in the Council, the bill has tried to assure the co-ordination between the state representation and autonomous representation. To achieve this objective the delegates of the CCAA will always follow the instructions of the State representative in the Delegation, and they will not oppose to the official position adopted by that Delegation.
It is important to underline that the bill states that institutional position of the Spanish State before the Council will be the same position agreed at internal level with the CCAA. At the present time that regional participation has been regulated by means of the Sectorial Conferences, in those which -like we have checked before – there is a marked prevalence of the State over the CCAA.
Another problem is the co-ordination inside the Delegation, among the state and autonomous delegates. To avoid disagreements within the Delegat ion, and also to assure an unique institutional position, the bill establishes that the delegate of the CCAA should follow the instructions given by the state delegates and support the position adopted by the Delegation. The CCAA representatives will be also abided by the duty of supporting the position adopted by the Delegation. Therefore, they will be never able to negotiate in the Council in an unilateral way, but “as belonging to Spain team”.
In short, the bill submitted before the state Parliament represents a attempt to introduce some definitive statutory rules for the co-operation of the CCAA in the European policy of the Spanish State.
It is not easy to predict if this proposal will be accepted by the Parliament of the State. We should remember that the proposal comes from an Autonomous Community (Balers), that is governed by a coalition of parties, with the Socialist Party as the lead, while the central Parliament is dominated by the Popular Party.
Gerardo Ruiz-Ricois Professor of Constitutional Law at the University of Jaén (Spain).
For more in-depth analysis, see the Jean Monnet Centre of European Excellence website: