Political autonomy, state and European Union: The complex anchoring of the state of autonomies in the European Union
| Autor | Maite Zelaia Garagarza |
| Cargo del Autor | Profesora Agregada de Derecho Constitucional, UPV/EHU |
| Páginas | 93-109 |
93
Political autonomy, state and European Union:
The complex anchoring of the state of autonomies
in the European Union*
M Z G
Profesora Agregada de Derecho Constitucional, UPV/EHU.
SUMMARY
I. The EU as a model of network governance
II. The principles upon which the State of Autonomies bases the articulation of
relations between the Spanish State and the Autonomous Communities
III. The principles that form the basis of the European Union’s relationship with the
Member States
IV. Some conclusions
I. THE EU AS A MODEL OF NETWORK GOVERNANCE
The process of European integration has placed the spotlight on
the complex relationship of interdependence, in terms of the sharing of
sovereignty, between Member States –MS– and the European Union –EU–.
An interdependence revealed to be even more complex by the fact that
the EU operates by means of a network governance, based upon a model
(of governance) that is legitimated by its capacity to fulfil its functions
thanks to the interactive operability of the networks structured around the
procedures for creating and adopting European decisions and policies. It
is the combination of this network or fabric of public and private, state and
supra-state (on occasions, infra-state too) agents, based on formal or informal
relational models, which is at the centre of the polyhedral decision-making
process that constitutes the European Union (Morata, 2002).
* Supported by the Spanish Ministry of Economy and Competitiveness (Grant DER2017-
84195-P) and the Basque Government (Consolidated Research Group Fundamental rights and European
Union-Europagune).
Maite Zelaia Garagarza
94
This polyhedral scenario calls for a new way of understanding the current
constitutional state as a cooperative constitutional state, notwithstanding
the dichotomy between internal and external sovereignty (MacCormick,
1999). However, in the process of European integration, the construction
of the cooperative constitutional state has been based upon the classic
dichotomous conception of sovereignty with the corresponding effects. Thus,
this has resulted in internal and external sovereignty becoming linked in a
different way to the constitutional rules designed to limit the actions of public
authorities and guarantee the fundamental rights of citizens. So much so that
“that cooperative constitutional state has been created through the absence of
internal distribution of powers and of the guidance of substantive parameters
in the exercise of external sovereignty” (Bustos, 2005). The question is, as
MacCormick points out, that a state which is sovereign in an external sense
has a Constitution under which no state organ enjoys full sovereign power.
So that the external sovereignty of the state can be distributed internally
between different state organs (horizontally and/or vertically), none of which
has absolute power or competence, and moreover there is control of the
exercise of power by other organs. When this occurs and, at the same time,
the state has at its disposal tools which guarantee that the limits established
will be respected, internal sovereignty, in a legal sense, is weakened or even
disappears. Unlike external sovereignty, a space in which the state will
continue to be “as sovereign as we can imagine” (MacCormick, 1999).
In the European context, from the parameter of a territorially
decentralized state and with a system of competences of constitutional design,
the consequence of the exercise of external sovereignty, without the application
of parameters that are applied to internal sovereignty, is the impact upon the
distribution of competences established constitutionally between state and sub-
state institutions. Which can be defined as a kind of “emptying of competences
towards Europe” with the consequent “sort of recentralization of competences
attributed in internal law to regions” (Boix, 2013). Really, emptying of
competences is not questionable, in the Spanish case, because of the absence of
an enabling constitutional clause that would legitimate European integration,
which exists and is materialized in article 93 EC (confirmed in this enabling
function by the Constitutional Court –CC– in the Rulings of 1992 and 2004),
but because there is an effect unforeseen by the constituent and constituted or
statute-drafting powers in the area of distribution of competences.
In this sense, the starting point is the multilevel governance upon which
the EU is based. The fact is that as European integration advances, the
Europeanization of the MS’s activity and policies is increasingly clear. Beyond
the (contrasting) interpretations issued from neo-functionalist and inter-
governmental positions, Morata advocates an alternative approach to the
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