The catalan sovereignty process and the spanish constitutional court. An analysis of reciprocal impacts
| Autor | Eduard Roig i Molés |
| Cargo | Professor of Constitutional Law. University of Barcelona |
| Páginas | 24-61 |
THE CATALAN SOVEREIGNTY PROCESS AND THE SPANISH CONSTITUTIONAL
COURT. AN ANALYSIS OF RECIPROCAL IMPACTS *
Eduard Roig i Molés**
Abstract
Since 2013 the Catalan sovereignty process and the Spanish Constitutional Court have increasingly been at odds with
one another. This situation has altered the course of the Catalan sovereignty process, with the interventions of the
Court notable for having a major bearing on sovereignty initiatives. The aim of this study is to analyse not just the
constitutional jurisprudence, but also the transformation of the Catalan sovereignty process based on the decisions of
the Constitutional Court, how these decisions have affected the course of action taken by Catalan institutions, and the
effects and efcacy of the Court’s judgments, court orders and rulings in curbing the intentions of Catalan institutions.
Conversely, the Catalan sovereignty process has had a major impact on the position of the Constitutional Court and
its functions, relating to the Court’s jurisprudence and the political choices of regional and state institutions, and this
impact is likewise analysed. Lastly, attention is given to the ‘collateral’ effects the Constitutional Court’s intervention
in the Catalan sovereignty process has had on a number of other areas of Spain’s constitutional system.
Keywords: Spanish Constitutional Court; constitutional law; sovereignty; Catalan sovereignty process.
PROCÉS SOBIRANISTA I TRIBUNAL CONSTITUCIONAL. ANÀLISI D’UN IMPACTE RECÍPROC
Resum
Des de l’any 2013, el procés sobiranista s’ha enfrontat progressivament amb el Tribunal Constitucional i ha provocat
una mutació del procés en bona part arran de les intervencions del Tribunal, que ha condicionat les iniciatives
sobiranistes com cap altra institució. L’objectiu d’aquest treball és analitzar la jurisprudència constitucional i,
sobretot, la transformació del procés a partir de les decisions del Tribunal, les implicacions que aquestes han tingut
en l’actuació de les institucions catalanes, així com l’ecàcia i els efectes de les sentències, les interlocutòries i les
providències del Tribunal per controlar i frenar les aspiracions de les institucions catalanes. El procés també ha
tingut un gran impacte en la posició del Tribunal i les seves funcions fruit de la seva pròpia jurisprudència i de les
opcions polítiques de les institucions autonòmiques i estatals, quelcom que també es recull en aquest treball. Finalment,
s’apunten les conseqüències «col·laterals» de la intervenció del Tribunal en el procés sobiranista per a molts altres
àmbits del sistema constitucional espanyol.
Paraules clau: Tribunal Constitucional; dret constitucional; sobirania; procés sobiranista.
* This article is a translation of the original version in Catalan.
**Eduard Roig i Molés, professor of Constitutional Law. University of Barcelona. eroig@ub.edu
Article received on 14.06.2017. Blind review: 15.06.2017 and 19.06.2017. Final version acceptance date: 21.06.2017
Recommended citation: Roig i Molés, Eduard. «The catalan sovereignty process and the spanish constitutional court. An analysis
of reciprocal impacts». Revista Catalana de Dret Públic, Issue 54 (June 2017), p. 24-61, DOI: 10.2436/rcdp.i54.2017.2991
Eduard Roig i Molés
The catalan sovereignty process and the spanish constitutional court. An analysis of reciprocal impacts
Revista Catalana de Dret Públic, Issue 54, 2017 25
Summary
1 The Catalan sovereignty process faced with the Constitutional Court
1.1 Political expression of the Catalan sovereignty process in the constitutional framework: Resolution 5/X, of 23
January 2013, and Constitutional Court Judgment 42/2014, of 25 March 2014.
1.1.1 Declaration of admissibility
1.1.2 The unconstitutionality of the declaration of sovereignty
1.1.3 The constitutionality of the ‘right to decide’ in the judgment’s own terms
1.1.4 The constitutional framework of the Catalan sovereignty process
1.1.5 The frame of reference for the Catalan sovereignty process and its transformation
1.2 Legal channels for expression of the Catalan sovereignty process: laws on popular consultations
1.2.1 Judgment 31/2015, of 25 February, on the Parliament of Catalonia’s Law 10/2014, of 26 September, on non-
referendum popular consultations
1.2.2 Constitutional Court Judgment 138/2015 and the scope of competence of an autonomous community
referendum, with reference in particular to proposals for constitutional reform
1.2.3 Constitutional Court Judgment of 10 May 2017 regarding Law 4/2010, on consultations via referendums
1.3 Exercising the ‘right to decide’ within the constitutional framework: the calling of the consultation for 9 November
2014 and the suspension of the corresponding actions
1.3.1 The objects (one-off pieces of legislation, parliamentary resolutions and executive actions relating to
suspended legislation) and purposes (censuring or executive prevention) of the suspensions
1.3.2 The content of the suspension
1.3.3 The censuring effects of the suspension and judgments and the route towards guaranteeing compliance with
the rulings
1.4 Political expression of intentional rupture with the constitutional framework: disconnection and the actions challenged
1.4.1 Initial considerations of disobedience: criminal proceedings resulting from the 9 November consultation
1.4.2 The Parliament of Catalonia’s Resolution 1/XI, of 9 November 2015, on the start of the Catalan sovereignty
process, and the corresponding Constitutional Court Judgment 259/2015
1.4.3 The parliamentary resolutions promoting the Catalan sovereignty process
1.4.4 Preparations of administrative actions linked to the Catalan sovereignty process
1.5 Evading the Constitutional Court’s control: de facto proceedings and changes in approach
1.6 The effects of the Constitutional Court’s intervention and the resulting transformations in the Catalan sovereignty
process
1.6.1 The judicialisation of the Catalan sovereignty process
1.6.2 The illegalisation of the Catalan sovereignty process
1.6.3 The difculty of achieving the goals set
1.6.4 Lack of formalisation and reduction of the public debate
1.6.5 Open confrontation with the law, the Constitutional Court and the ordinary courts: disobedience
2 The Constitutional Court faced with the Catalan sovereignty process
2.1 The evolution of the Constitutional Court’s position, functions and instruments
2.1.1 Denition of the constitutional framework: the Constitutional Court’s self-restraint, referral to the political
debate and indications for the future
2.1.2 Denition of the constitutional framework: judicialisation and the restrictions on autonomous community actions
2.1.3 The function of ensuring the established framework through the prevention of new contrary actions
2.1.4 The guaranteeing of the rulings handed down: compliance and execution
2.2 The central role played by the Constitutional Court in relation to the Catalan sovereignty process: an assessment
2.2.1 Negative impacts on the Constitutional Court
2.2.2 The Constitutional Court’s contributions to the conict
3 Postscript: the conict’s ‘collateral victims’
3.1 Parliamentary debate
3.2 Autonomous community competences
3.3 Direct democracy
3.4 The Constitution’s integrating function (vs. its legislative function)
OTHER WORKS CITED
Eduard Roig i Molés
The catalan sovereignty process and the spanish constitutional court. An analysis of reciprocal impacts
Revista Catalana de Dret Públic, Issue 54, 2017 26
The course of the Catalan sovereignty process, from its rst ofcial declaration in 2013 to the present day,
has increasingly been at odds with the Spanish Constitutional Court, which has been at the forefront of the
discussions between the State and Catalan institutions. Over time this relationship has altered the course
of the Catalan sovereignty process, with the interventions of the Court notable for having a major bearing
on sovereignty initiatives. The rst objective of this study is to analyse the constitutional jurisprudence
and to a greater extent the transformation of the Catalan sovereignty process based on the decisions of the
Constitutional Court. Analysis of the jurisprudence is necessary but has already been well covered;1 this work
looks beyond this to focus on how said jurisprudence has affected the course taken by Catalan institutions
and, as a result, how effective the Court’s actions have been in spearheading efforts to monitor and curb the
Catalan sovereignty process. The rst section of the article pursues this objective under the title ‘the Catalan
sovereignty process faced with the Constitutional Court’.
The Constitutional Court has had a huge bearing on the Catalan sovereignty process. Conversely however,
the Catalan sovereignty process has also had a major impact on the institutional position of the Constitutional
Court and its functions. This impact has stemmed from the Court’s own jurisprudence and the political
choices of regional and state institutions – choices about how the Catalan sovereignty process has been
pushed forward and about how the Constitutional Court has been employed, respectively. An examination
of this impact is the second objective of this study, under the title ‘the Constitutional Court faced with the
Catalan sovereignty process’.
The Constitutional Court’s intervention in the Catalan sovereignty process holds consequences for a number
of other areas of Spain’s constitutional system, as decisions taken in this context will inuence the functioning
of institutions and norms applicable in other areas. The nal section of this article outlines these ‘collateral’
effects of the Constitutional Court’s jurisprudence on the Catalan sovereignty process.
1 The Catalan sovereignty process faced with the Constitutional Court
Despite the Constitutional Court’s jurisprudence on autonomous regions and its Judgment 31/2010 on the
Statute of Autonomy of Catalonia in particular – understood as the culmination of an increasingly restrictive
interpretation of the constitutionally recognised concept of regional autonomy, which are often highlighted
as signicant elements in the rise and strengthening of sovereignty movements,2 and despite the existence of
precedents in the Constitutional Court’s jurisprudence, the Constitutional Court did not address the Catalan
sovereignty process until 2013, when it challenged the Parliament of Catalonia’s Resolution 5/X, of 23 January
2013, on behalf of the Spanish Government. This section of the article goes on to examine the development
of the Catalan sovereignty process based on the rulings adopted by the Constitutional Court, which allow the
process to be seen in four stages: its political expression (section 1.1), its legal regulation (section 1.2) and
efforts to develop it within the constitutional framework (section 1.3), its open conict with the constitutional
framework (section 1.4), and recent actions to avoid intervention from the Constitutional Court (section
1.5). The basis for this order of stages corresponds to the chronological order of the Constitutional Court’s
1 An overview of the jurisprudence is found in Bar Cendón, A., ‘El proceso independentista de Cataluña y la doctrina jurisprudencial
: una visión sistemática’, in Teoría y Realidad Constitucional, no. 37, 2016, p. 208ff. and in Castellà Andreu, J. M., ‘Tribunal
Constitucional y proceso secesionista catalán: respuestas jurídico-constitucionales a un conicto político-constitucional’, in Teoría y
Realidad Constitucional, no. 37, 2016, p. 561ff., or, for a more generic approach, Ferraiuolo, G., ‘Tribunal Constitucional y cuestión
nacional catalana. El papel del juez Constitucional español entre la teoria y la práctica’, in Cagiao Conde, J., and Ferraiuolo, G.,
(coords.), El encaje constitucional del derecho a decidir, Libros de la Catarata, Madrid, 2016, p. 110ff.
2 An overview of the origins and evolution of the Catalan sovereignty process, including a range of different perspectives, can
be seen in the works of Galán Galán, A., ‘Del derecho a decidir a la independencia: la peculiaridad del proceso secesionista en
Cataluña’, in Istituzioni del federalismo, no. 4, 2014, p. 885ff., Ferreres Comella, V., ‘Cataluña y el derecho a decidir ’, in Teoría y
Realidad Constitucional, no. 37, 2016, p. 461ff, Barceló i Serramalera, M., ‘El derecho a decidir como instrumento constitucional
para la canalización de problemas territoriales’, in Fundamentos, no. 9, 2016, p. 361ff., and from the same author, ‘Reconocimiento
y construcción del derecho a decidir en el sistema constitucional español’, in Barceló, M., Corretja, M., González Bondia, A., López,
J., Vilajosana, J. M., El derecho a decidir. Teoría y práctica de un nuevo derecho, Atelier, Barcelona, 2015, p. 91ff. Issue no. 37 of
the journal Teoría y Realidad Constitucional (2016) also offers diverse and contrasting viewpoints from Albertí Rovira, E., Blanco
Valdés, R., Fossas Espadaler, E., Freixes Sanjuan, T., García Fernández, J., Montilla Martos, J. A., Satrústegui Gil-delgado, M., and
Vírgala Foruría, E., by way of an interview with common questions, ‘Encuesta sobre la cuestión catalana’, p. 16ff. In particular, on
the signicance of Constitutional Court Judgment 31/2010, much can be drawn from the varied contributions of Albertí Rovira, E.,
(p. 26ff.), Montilla, J. A. (p. 34ff.) and Vírgala, E., (p. 37).
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Revista Catalana de Dret Públic, Issue 54, 2017 27
interventions (with the occasional exception, which will be noted), and enables conclusions on the effects of
the Constitutional Court’s intervention in the Catalan sovereignty process to be drawn (section 1.6).
1.1 Political expression of the Catalan sovereignty process in the constitutional framework: Resolution
5/X, of 23 January 2013, and Constitutional Court Judgment 42/2014, of 25 March 2014.
Resolution 5/X, which was made directly after the regional elections for Catalonia in 2012, had two distinct
elements that were challenged: a declaration of the sovereignty of the people of Catalonia and a push to exercise
the same people’s ‘right to decide’ (this concept is not dened by the Resolution, but is inuenced by it).
There are two particularly relevant points to be made in order to give context to the rst intervention made
by the Constitutional Court: Resolution 5/X does not deliberately clash with the constitutional framework,
rather its intention is to work within said framework; and, despite not being the rst parliamentary resolution
to contain a declaration of sovereignty, it was the rst to do so directly and substantially, without binding
itself to a specic claim (within the constitutional framework); it is also the rst to initiate a process to be
developed with actions likely to lead to legal consequences and results, through the inclusion of the ‘right to
decide’. These two elements are the likeliest explanation as to why, unlike its precursors, Resolution 5/X was
challenged in the Constitutional Court.
Judgment 42/2014,3 which settled this rst conict, adopted three decisions that were important to the
development of the Catalan sovereignty process: rstly, the challenge was declared admissible, meaning
that the Constitutional Court accepted its remit to intervene, not only in relation to the Catalan sovereignty
process but also, very importantly, in relation to the parliamentary resolutions linked to it (section 1.1.1);
secondly, recognition of sovereignty as an attribute of the Spanish nation, to be exercised through state
institutions, but not an attribute of Spain’s constituent nationalities (section 1.1.2); and lastly, recognition
and constitutional protection of a political space for discussion and debate on exercising the ‘right to decide’,
seen by the Constitutional Court as the possibility of carrying out institutional actions in preparation and
promotion of constitutional reform in relation to sovereignty (section 1.1.3). These three elements form the
initial constitutional framework for the Catalan sovereignty process, dened by the Constitutional Court
with a certain amount of openness as well as a vigilant watchfulness (section 1.1.4), and they represent the
conceptual frame of reference for the future development of said process (section 1.1.5).
1.1.1 Declaration of admissibility
The admissibility of the challenge to a parliamentary resolution is particularly controversial, as the
Constitutional Court has repeatedly insisted that it is its intention only to deal with acts that have legal
consequences. This protects the Court from the difculty and consequences of ruling on disputes that are
not based on legal reasoning while also protecting political pluralism and the freedom to discuss any aspect
which is not the cause of legal effects.4 Previously there had been discussion over the taking of this position
in Judgment 31/2010 and its indictment of the preamble to the 2006 Statute of Autonomy of Catalonia, as the
precise nature of what ‘legal effects’ are and what is capable of producing them is sometimes debatable. In
this Judgment the Constitutional Court opened the door to a wide understanding of what ‘legal effects’ are,
thus bringing this matter once again to the fore.5
3 Judgment 42/2014, of central importance to this topic, has been the subject of numerous specic commentaries, in addition to the
works cited in note 1: in particular see Fossas Espadaler, E., ‘Interpretar la política’, in Revista Española de Derecho Constitucional no.
101 (2014), p. 273ff.; Ridao i Martín, J., ‘La juridicación del derecho a decidir en España’, in Revista de Derecho Político no. 91, 2014
p. 91ff.; and the works of Arbós Marín, X., ‘El Tribunal Constitucional como facilitador’ and Tajadura Tejada, J., ‘La STC 42/2014, de
25 de marzo, respecto a la resolución del Parlamento de Cataluña 5/X, de 23 de enero de 2013, por la que se aprueba la declaración de
soberanía y del derecho a decidir del pueblo de Cataluña: la introducción del “derecho a decidir” en el ordenamiento jurídico español’,
both in La última jurisprudencia relativa al Parlamento, Basque Parliament, Vitoria-Gasteiz, 2016, p. 21ff. and p. 56ff.
4 See Constitutional Court Judgment 48/2003, of 12 March 2003, and in particular Constitutional Court Order 135/2004, of 20
April (legal grounds no. 6).
5 Constitutional Court Judgment 31/2010, of 28 June, and most importantly legal grounds no. 7, in which the Court examines the
constitutionality of the Statute’s preamble, entailing the exclusion of any legal effects. On this matter, see Arbós Marín, X., ‘La nació:
un pas endavant i dos enrere’, in Revista Catalana de Dret Públic, ‘Especial Sentencia 31/2010 del Tribunal Constitucional sobre el
Estatuto de Autonomía de Cataluña de 2006’, p. 105ff.
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The Judgment dened which resolutions may be declared unconstitutional by way of two characteristics:
their denitive character (opposition to a ruling made in a parliamentary proceeding with a subsequent nal
ruling) and the causing of legal effects. This meant that previous elements of jurisprudence on this matter
were maintained, avoiding an alternative route that might have focused on issues of key political importance
in the Resolution,6 something that could have prevented the difcult debate on ‘legal effects’ but would also
have forced the Constitutional Court to fully address questions surrounding its capacity to interfere with (and
block) a political debate.
The rst of these characteristics mentioned (denitive character) essentially guarantees the possibility of
discussions being generated on subjects or texts that contain unconstitutional elements, but when, over the
course of the parliamentary process, these elements may disappear or be modied in such a way as to ensure
compatibility with the constitution. The Resolution that was challenged did not have problems in this regard,
as it was a denitive Resolution, not a partial decision in the framework of a wider parliamentary process
(although this is a question that will have to be looked at again in the case of other more conictive scenarios).
In contrast, the second characteristic (being the cause of legal effects) was much more contentious.
The Constitutional Court completely ruled out the existence of legal effects on citizens and reiterated
parliamentary resolutions’ lack of binding effectiveness in terms of public powers. However, the Court also
directly introduced an assertion of legal effects, not binding, but in this case stemming from the possibility
of understanding the Resolution as ‘the recognition (…) of attributes inherent to sovereignty’ (legal grounds
no. 2), and from the ruling’s view that the Resolution appeared to seek to initiate a process ‘demands the
execution of specic actions and this execution is subject to parliamentary review…’ (ibid). This assertion,
besides its evident truth, poses the problem of being applicable to all parliamentary resolutions that, almost
by denition, entail ‘recognition’ and the possibility of ‘parliamentary review’. This was the basis for the
acceptance of the challenge and for the Constitutional Court’s jurisdiction. It was a decisive step forward for
the Court, which thus became the primary and essential institution overseeing the decisions adopted, while
also enshrining them as legally relevant.
Although it may have been hard at the time to envisage it, both aspects are highly relevant for the future: rstly,
the Constitutional Court takes the lead in dening and defending the constitutional framework in relation to
the Catalan sovereignty process, a position it cannot now abandon, something that is a disincentive to other
institutions intervening and which directs the process towards a dynamic centred on its (legal) compatibility
with the constitutional framework; and secondly, grounds are provided for a wider understanding of ‘legal
effects’, opening the door to signicant future discussions about the compliance with and execution of, the
Constitutional Court’s judgments.
1.1.2 The unconstitutionality of the declaration of sovereignty
Having accepted the challenge, the Constitutional Court had to address the meaning of the declaration of
sovereignty contained in the rst section of the Resolution. Without going into a debate on the theory of sovereignty
or its conguration and effects in a composite state, the Constitutional Court limited itself to verifying how the
Resolution describes sovereignty as a denite attribute belonging to the people of Catalonia, and comparing this
with the constitutional arguments that attribute sovereignty to the Spanish nation, and with its own jurisprudence
on this matter.7 On these premises, there could be no other conclusion but the unconstitutionality of the declaration,
based not so much on the general use of the concept of sovereignty but on its specic conguration, void of links
6 In contrast, this direction is signalled by Castellà Andreu, J. M., ‘Tribunal Constitucional…’, in Teoría y Realidad Constitucional,
no. 37, 2016, p. 570, with reference to a ‘declarative, revolutionary-type function’; a similar line is taken by Tajadura, J., ‘La STC
42/2014…’, p. 64. The arguments against the Constitutional Court’s decision to admit the appeal can be seen initially in Vintró Castells,
J., ‘El Tribunal Constitucional y el derecho a decidir de Cataluña: una reexión sobre la STC de 25 de marzo de 2014’, [blog post,
online] Revista Catalana de Dret Públic [accessed June 2017], and in the works of Fossas, E., and Ridao i Martín, J., cited in footnote
no. 3, or the opinions of Vírgala, E., in ‘Encuesta sobre la cuestión catalana’, p. 72ff.
7 Constitutional Court Judgment 42/2014, of 25 March, legal grounds no. 3: ‘A recognition of sovereign status in favour of the
people of Catalonia (…) is incompatible with Article 2 of the Spanish Constitution; the partial subject that is entrusted with this
power would be therefore able, at its discretion, to breach what the Constitution has declared as a basic principle: “the indissoluble
unity of the Spanish Nation”.’
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or claims directly adhering to the constitutional framework, instead understood as a general assertion that could
provide grounds for future actions outside of or against said framework.
In particular, the Constitutional Court rejected the Catalan Government’s arguments defending an interpretation
of the declaration of sovereignty essentially linked to the terms of the ‘right to decide’, introduced in the second
section. According to these arguments, the declaration of sovereignty would not be a direct consequence of
the Resolution, but rather a possibility specic to the proposal to give the people of Catalonia a means
to decide their political future, meaning that the declaration should not be taken in isolation but rather as
something that depends on the decision adopted on the ‘right to decide’. The Constitutional Court’s position,
drawing a clear line between the two sections and considering them independently, inevitably brings it to
declare the declaration of sovereignty as unconstitutional, for being incompatible with the constitutional
attribution of national sovereignty in article 1.2. It does, however, allow for an interpretation of the second
part of the Resolution, the highly ambiguous ‘right to decide’,8 that is much more open and compatible with
the constitutional framework.
1.1.3 The constitutionality of the ‘right to decide’ in the judgment’s own terms
In point of fact, the Constitutional Court places particular emphasis on the open and non-combative nature of
Spain’s constitutional system, legitimising the defence of options that run contrary to said system, provided
this defence (and not the options defended) is made via constitutionally appropriate procedures, without
prejudice to constitutional decisions.9
As a result, the Constitutional Court can easily identify a constitutional understanding of the ‘right to decide’
as a political proposal that includes secession – in itself unconstitutional, provided this proposal is made in
accordance with the procedure dened by the Constitution and, accordingly, is directed at the institutions capable
of constitutional reform. The capacity for initiating constitutional reform that is open to Autonomous Communities
as well as the direct annulment of any resolution challenged, in accordance with democratic and (in particular)
legal principles, mean that the Constitutional Court is able to see the ‘right to decide’ as constitutional.
As such, the Constitutional Court denes the ‘right to decide’ included in the Resolution as a series of actions
(to be determined) that:
a) do not constitute a new ‘right’, understood as powers to act guaranteed by the Spanish legal order,
rather they are the exercising of rights and procedures already provided for by the legal order to
propose political and legal changes in the correct fashion;
b) do not attribute or recognise a power to make legally effective decisions in favour of any new matters,
rather they enable, where applicable, the raising of a matter (a ‘political intention’, according to legal
grounds no. 3 b) to be decided by whoever holds the power to do so according to the constitution;
c) therefore lead towards a constitutional reform process that enables ‘the raising of concepts that seek
to modify the basis of the constitutional order (…) provided this is not prepared or defended through
activities that breach our democratic principles, our basic rights or the rest of our constitutional
mandates, and the efforts to achieve it are made within the framework of the procedures for
Constitutional reform…’.10
8 The ‘right to decide’ has its background in constitutional jurisprudence, in relation with Law 9/2008 of the Basque Country
Autonomous Community, which was addressed in Constitutional Court Judgment 103/2008 of 11 November. In relation to this, López
Basaguren, A., ‘Sobre referéndum y comunidades autónomas: La Ley vasca de la “consulta” ante el Tribunal Constitucional’, in Revista
d’Estudis Autonòmics i Federals, no. 9, 2009, p. 202ff., and Corcuera ‘Soberanía y autonomía. Los límites del “derecho a decidir”
(Comentario de la STC 103/2008)’, in Revista Española de Derecho Constitucional no. 86, 2009, p. 303ff. Its denition in the case of
the Catalan sovereignty process has been the object of detailed and controversial analysis in the works cited in footnote no. 2.
9 Particularly important here is the doctrine established in Constitutional Court Judgment 103/2008, which the Court cites when
handing down Constitutional Court Judgment 42/2014 (legal grounds no. 3) that ‘there is allowance for the raising of concepts that
seek to modify the basis of the constitutional order in our system, provided this is not prepared or defended through activities that
breach our democratic principles, our basic rights or the rest of our constitutional mandates, and the efforts to achieve it are made
within the framework of the procedures for Constitutional reform…’.
10 This possibility is particularly relevant in its contrast with the Constitutional Court’s emphatic statement in its Judgment 31/2010
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As such the Constitutional Court achieves a double effect: rstly it recognises and protects a space for debate
and the development of claims to independence that may legitimately be advanced, rejecting proposals that
argue that the debate itself is unconstitutional. In this regard, the intervention of the Court can be seen as the
opening of a means for political discussion, provided by the Court itself in recognition of the political nature
of the debate, placing itself (and legal limitations) above this legitimate debate while also guaranteeing
it. At the same time, however, this means is shown to be clearly subject to constitutional procedures and
competences (and to control from the Court itself), leaving the denition of these procedures open to the
future, a matter that would guide subsequent interventions by the Court and will quickly take centre stage.
1.1.4 The constitutional framework of the Catalan sovereignty process
At a rst glance, the Constitutional Court construction that has just been described would appear contradictory.
On the one hand it justies its intervention on the basis of the consequences unfolding from the declaration as
regards potential future actions originating from autonomous community institutions (the ‘legal effects’), but
on the other hand it rejects the connection between the rst point of the Resolution (the abstract declaration of
sovereignty) and its second point (the introduction of the debate on the ‘right to decide’), considering the latter
to be constitutional but, in contrast, the declaration of sovereignty to be unconstitutional, precisely because
of its abstract nature and the possibility of it giving rise to unconstitutional elements. However, this is a way
by which the Constitutional Court manages to ‘constitutionalise’ the right to decide (in fact distancing it from
the exercising of sovereignty),11 while clearly marking its ‘constituted’ character, limited by constitutional
precepts. The position the Judgment gives to the Catalan sovereignty process is best expressed as follows:
a) The raising of political demands for independence by autonomous community institutions is legitimate,
but there are no specic rights supporting special consideration for these demands. As a result, they
must be expressed via the general legal channels, and represent a political proposal, subject therefore
to whatever levels of support exist in the corresponding parliaments.
b) Therefore, the precise nature and conditions of these procedures rstly belong to the general legal
framework for each case (legislative initiative, referendum, constitutional reform initiative, etc.), and
secondly depend on a free political decision to be made by whoever is given the power to do so by the
constitution, in accordance with the system of distributed powers.
c) In particular, the denition of independence (without regard to other decisions) requires constitutional
reform, which may be proposed by Catalan institutions but which would be decided upon by state
institutions, even though they can carry out actions to promote it within the appropriate framework.
As such, the Constitutional Court points to political negotiation as the appropriate route to provide the
response that is considered politically convenient to the demands arising from the process of exercising the
‘right to decide’, this being understood as described herein.12 It does so not only for an eventual decision on
a constitutional reform relating to Catalan independence, but also for other matters that could arise in this
process and require political agreement, with or without constitutional reform, and without ruling out the
possibility of means for citizen participation in this process.
1.1.5 The frame of reference for the Catalan sovereignty process and its transformation
The Judgment does not just establish, initially, the constitutional framework of the Catalan sovereignty
process; insomuch as it forms the rst response from state institutions to the line taken by Catalonia’s
(legal grounds no. 69), which excluded any possibility of state or regional referendums ‘on matters fundamentally resolved by the
constituent process’. This contrast appeared to open the door to popular consultation processes being developed in Catalonia, as per
the interpretation in the cited works by Vintró, J., (‘sufcient elements can be found in the judgment to defend (…) that, without prior
constitutional reform, a consultative referendum agreed upon with the State could be held in Catalonia…’) or Ridao i Martín, J., ‘La
juridicación del derecho a decidir en España’, p. 96.
11 The criticism of this construction, for being incoherent with the Resolution itself and the right to decide as outlined by the Parliament
of Catalonia (something leading to subsequent conict), is explored in the works of Fossas, E., p. 298ff, and Tajadura, J., p. 73ff.
12 On this point, in particular see the cited work by Arbós Marín, X., ‘El Tribunal Constitucional como facilitador’, p. 41ff., on the
concept of the Constitutional Court as a ‘facilitator’.
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autonomous community institutions, it also determines a frame of reference for the debate that, from this
moment on, would focus on three matters stemming directly from the Judgment:
a) Firstly, the emergence of judicial review as regards the constitutionality of the process, with a permanent
presence projecting over practically all autonomous community actions. In this regard, the rst effect
of the Judgment was to rule out a space for discussion that would be exclusively political and therefore
separate from the constitutional framework, not established in legal terms. However, the admission of
the challenge brought about this precise effect, regardless of subsequent attempts by the Constitutional
Court to maintain a legitimate space for political debate. The Catalan sovereignty process’s constitution-
ality thus became the central topic of discussion, both because it was the only area where a denite state
response existed, and because it became the basic yardstick for the process’s development and survival.
In this sense the Judgment, which aimed to channel the conict into political territory, paradoxically
became a contributor to the judicialisation of the process,13 especially faced with the rapid depletion of
political openings, there being a shortage of responses and initiatives in equal measure.14
b) Secondly, rather than focusing on the causes of the underlying conict and the alternatives for resolv-
ing it, the debate centred on how the decision on independence would be taken to the Spanish parlia-
ment and, specically, the possibility of putting it to Catalan people rst as a popular consultation.
The political debate in the following months was monopolised by this matter, becoming the dominant
focus of the Catalan sovereignty process. The primary objective thus stops being sovereignty or in-
dependence, instead becoming the holding of a consultation as the only effective way to politically
channel the calls for independence. This illustrates and intensies the judicialisation of the Catalan
sovereignty process, as the focus turns to the means of expression rather than the political content.
c) Lastly, this demand for a popular consultation is made with the intent of using a legally correct channel
offered by the possibilities the Constitutional Court presented. It seeks to legitimise the consultation
and to surmount the control exerted by the Constitutional Court when it happens.
1.2 Legal channels for expression of the Catalan sovereignty process: laws on popular consultations
This changing course of the Catalan sovereignty process – as seen from the perspective of this study – is
marked by the two judgments handed down by the Constitutional Court on the Parliament of Catalonia’s
laws regulating popular consultations. It is important, however, to distinguish these two judgments in terms
of both their content and their context and impact on the process.
1.2.1 Judgment 31/2015, of 25 February, on the Parliament of Catalonia’s Law 10/2014, of 26
September, on non-referendum popular consultations
The Constitutional Court’s second intervention on the Catalan sovereignty process came about in a very
different context. The discussion was no longer about a political debate and its potential channels, but about
legislation that envisaged a popular consultation as a key element in exercising the right to decide, under a
regime notable chiey for its unilateral approach: it was the autonomous community that was regulating,
dening and calling the popular consultation, and this unilateral approach would become the core aspect of
the underlying debate on constitutional questions.
13 Not so much in the sense of forming a new right – an aspect emphasised by Ridao i Martín, J., ‘La juridifcación…’, p. 95,
criticised by Fossas, E., ‘Interpretar la política’, p. 298, and essentially denied, correctly in my opinion, by Arbós Marín, X., ‘El Tribunal
Constitucional como facilitador ’, p. 37ff. and Albertí, E., ‘Encuesta sobre la cuestión catalana…’, p. 45ff. – but instead in the sense
of a political claim, which until that moment had developed in the framework of political debate, converted into an action with ‘legal
effects’, which as a result must give rise to legal acts, and above all is limited by a narrower legal framework and stricter judicial review.
14 Essentially just the proposal for an organic law delegating the Government of Catalonia the power to authorise, call and hold a
referendum on the political future of Catalonia, which the Catalan parliament put before the Spanish parliament on 17 January 2014
(Ofcial Parliamentary Gazette B-1598-1, of 24 January 2014), and which was debated and rejected on 8 April 2014 (Congress of
Deputies Sessions Record, Plenary no. 192, of 8 April 2014).
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a) The appeal, the automatic suspension and its effects
First of all, attention must be given to an aspect that appears for the rst time in this process, but which will be
of growing importance in the future development of such conicts: the reasoning behind the Constitutional
Court’s decision is less important than the precautionary decision in favour of suspension, because what is at
stake is not so much the validity of a general legal framework for diverse actions, but the possibility of holding
a single specic consultation under the aegis of this framework, or at least of initiating the corresponding
activities. As a result, all parties involved concentrate on dening their actions in such a way as to be able to
bring about their effects as quickly as possible: from one side to avoid the suspension and prohibition from
the Constitutional Court, and from the other side to ensure this precise result.15
These are considerations that help to account for certain characteristics of the Law on non-referendum
popular consultations which are otherwise difcult to understand within the constitutional system: essentially
this Law states that the decision over when the consultation is held is to be made by the President of the
Government of Catalonia, using the question that he/she sets, and even with the additions to the scope of
the electorate that he/she deems appropriate. These details are all very surprising in a parliamentary system,
and in relation to a popular consultation, a decision of such importance to the balance of power. However,
looking at it from another angle, these are decisions that enable immediate execution without any delays over
authorisation to call the consultation, before the Law that enables it is challenged and suspended.
Thus for the rst time, the Catalan sovereignty process adopted an approach (and legislation) aimed
essentially at avoiding or mitigating the effects of the State’s main means of reaction, i.e. its appeal to
the Constitutional Court and the suspension of the actions or legislation that provides for the consultation.
Therefore, the debate over the suspension, its continuation and its effects took centre stage, despite these
being merely the automatic consequence of the appeal being brought before the Court. This initiated a
dynamic whereby the nature of the Constitutional Court’s intervention was not so much about dening the
constitutional framework (an unequivocally fundamental duty of this court within Spain’s system) as it was
about preventing actions that run counter to the framework already dened. Further reference shall be made
to these elements and their dynamic in subsequent sections.
b) The Judgment: the similarity between the consultation and a referendum and the need for authorisation from the State
However, at that moment there was still a background discussion on the constitutionality of the Catalan Law,
which, by virtue of the form it took, was subject to the Constitution. The Constitutional Court therefore assumed its
traditional role of defender of the constitutional framework, in this case focusing on classifying the consultations
provided for by this Law as consultations that are, in effect, referendums. Consequently, the Court deemed it
impossible for an autonomous community to unilaterally legislate for and call a consultation of this type.
As such, under terms coherent with Constitutional Court Judgment 42/2014, it ruled out the possibility of the
‘right to decide’ being developed and exercised in a consultation dened unilaterally by the government of an
autonomous community and aimed at the general electorate to be carried out as a vote, as these are the dening
elements of what the constitution sees as a referendum, the calling of which is to be legislated and authorised by
the State alone (most importantly, see legal grounds no. 8 of Constitutional Court Judgment 31/2015).16
In this regard, the Judgment stated that the consultation in which the ‘right to decide’ is materialised must
follow the constitutional rules of a referendum. This meant the reasoning of the Constitutional Court and its
effects would be brought into force if there was a lack of agreement with the State, the competent authority
15 The Law that was challenged entered into force on the same day it was published in the Government of Catalonia’s Ofcial
Journal, 27 September 2014, Decree 129/2014, on the calling of a consultation on the political future of Catalonia, being passed
that same day. On the following day the Spanish Council of State took legal advice to lodge an appeal, which it did before the
Constitutional Court on 29 September. The court then accepted the appeal on that same day, automatically overturning said law.
16 The immediate object of the judgment was denition of the referendum concept and the possibility of a citizen consultation
outside of its legal system, as per the proposal in the law that was challenged. In relation to this, Castellà Andreu, M., ‘Consultas
populares no referendarias en Cataluña’, in Revista Aragonesa de Administración Pública, no. 14, 2013, p. 121ff., Bar Cendón, A.,
‘El proceso independentista de Cataluña y la doctrina jurisprudencial : una visión sistemática’, in Teoría y Realidad Constitucional,
no. 37, 2016, p. 208ff., and Ridao i Martín, J., ‘La oscilante doctrina del Tribunal Constiucional sobre la denición de las consultas
populares por la vía de referéndum. Una revisión crítica a través de cuatro sentencias’, in Estudios de Deusto, vol. 63, no. 1, 2015.
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in this area, in particular as regards the authorisation specied in article 149.1.32 of the Spanish Constitution.
As such, once the nature of the consultations had been established as being to all intents and purposes the
same as that of a referendum, there was no doubt regarding their unconstitutionality, as per the strict limits
set by the aforementioned article 149.1.32, thus reserving competence over referendums to the State.17
Other arguments of how the Law is unconstitutional, ones made in the appeal that were the cause of greater
controversy, were, as a result, unnecessary for the ruling.18 The constitutional possibility of consultations
at autonomous community level (1), the state regulation needed for such consultations (2), the scope of
competence over the consultation subject matter (3), the possibility of consultations on aspects that go against
the Constitution (4), and the possibility and role of consultations (and particularly autonomous community
consultations) in the framework of a constitutional reform process (5), are all questions that are left open,
despite the Constitutional Court making various assertions about them which, in the absence of discussion
and analysis, may be considered obiter dicta. This leaves open the possibility of the State making a pact for
a consultation as a way of implementing the ‘right to decide’, as per its conception in accordance with the
Constitution in Constitutional Court Judgment 42/2014.
c) The framework for the Catalan sovereignty process following the Judgment and its subsequent development
The consequences of the Judgment on the Catalan sovereignty process can be analysed from two perspectives:
the denition of its constitutional framework as per the Judgment’s legal grounds and its future relationship
with the Constitutional Court as the controlling public authority.
In terms of the constitutional framework, the Judgment expands upon the legitimate spaces for developing
the ‘right to decide’, ruling out the possibility of unilateral popular consultations. Despite various assertions
that this space is also delimited by other constitutional precepts or even that it is subject to authorisation from
the State, the Constitutional Court does not give clear indications excluding the possibility of autonomous
community consultations under the current framework19 or excluding preliminary popular consultations in
the framework of constitutional reform, which, from the outset, has been established as the only context
where a constitutionally legitimate declaration of independence would be possible.
As such, the Judgment maintains the possibility of constitutional development of the ‘right to decide’ and the
Catalan sovereignty process, providing it entails political discussions with the state institutions and a nal
decision on the matter by state institutions.20 The emphasis on guaranteeing this room for decision by the State
17 ‘…the Law (…) regulates an authentic referendum-like consultation. As such the autonomous community legislator has ignored
the consequences stemming from articles 23.1 and 149.1.1 of the Spanish Constitution in relation to article 81.1 (…), from article
92.3 (…) and from article 149.1.32, (all aforementioned articles also from the Spanish Constitution) which attribute the State with
exclusive competence…’ (legal grounds no. 9).
18 Nevertheless, the Constitutional Court goes a lot further than just ascertaining that the Law fails to meet the requirement of
authorisation from the State, also exploring the need for prior legislative intervention in the organic law, strictly speaking not necessary
for its ruling. Relative to this it is interesting to note the contrast with the doctrine offered by the Council for Statutory Guarantees of
Catalonia in its judgments 3/2010 and 19/2014 (and dissenting opinions), which the Constitutional Court ignores completely, without
applying in this case the principle of dialogue between jurisdictions, so useful in other areas. The assertions put forward by the Court,
essentially relating to that which is the preserve of organic law, could also be included in the ratio decidendi, which would then close
the framework for the ‘right to decide’. This is a matter that shall be looked at again in this article together with the Constitutional Court
Judgment on the 2010 Law on consultations. As regards the remaining questions, the Court refers to statements from Constitutional
Court Judgment 31/2010 (legal grounds no. 69), accompanied in some cases by citations from Constitutional Court Judgment 42/2014,
which are more open and are not subjected to analysis or specic discussion (legal grounds no. 6) and which do not lead on to the
judgment of the Law being unconstitutional, thus remaining clearly outside the ratio decidendi. Regarding these questions and in
particular the joint consideration of limits to competences and limits relating to the need for constitutional reform, Constitutional Court
Judgment 138/2015 and Constitutional Court Order 24/2017 refer to arguments from Constitutional Court Judgment 31/2010; these,
however, raise doubts about comprehension and scope, doubts that shall be looked at again shortly.
19 Along these lines, readings with different emphases are found in Vintró Castells, J., ‘El Tribunal Constitucional y la consulta
en Cataluña: certezas, ambigüedades, decepción’, [article, online] Agenda Pública [accessed June 2017], and Roig Molés, E., ‘De
expectativas, frustraciones y prudencia judicial. Comentario a la Sentencia del Tribunal Constitucional de 25 de febrero de 2015
sobre la Ley de consultas populares no referendarias de Cataluña’ [blog post, online] Instituto de Derecho Público [accessed June
2017].
20 It is worth noting that the Constitutional Court limits itself to highlighting the constitutional precepts that are breached and
making its corresponding interpretations, without explaining the meaning and function of said precepts. This signicantly reduces
the force of the Judgment in terms of its ‘integrating’ impact and its effectiveness in the context of political debate, a matter that
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replaces the emphasis in the 2014 Judgment guaranteeing a space for debate and demands for sovereignty.
Furthermore it accentuates the regulatory (and restrictive) aspects of the Constitution as opposed to its more
enabling and pluralistic aspects, and corresponds to the steps taken by Catalan institutions towards unilateral
action in detachment from state institutions.
Given this scenario, the Catalan sovereignty process was faced with just one choice: either to move forward
through political dialogue to reach decisions, albeit accepting that the state institutions have the nal say, or
to enter a face-off with the judicial framework, by virtue of its unilateral approach, and as a result deprive
itself of constitutional legitimacy, becoming an unlawful activity. The Judgment removed the possibility of
defending any unilateral action that would limit the State’s freedom to make a decision. It therefore meant
that future sovereignty initiatives would have to accept either a limited capacity to put political pressure
on the Spanish parliament or an open conict with the constitutional framework – a xed framework set to
remain valid until the same Constitutional Court should decide otherwise.
This meant that if – as would go on to happen – Catalan Government institutions chose the path of conict,
their actions could only be effective as far as they managed to avoid interventions from the Constitutional
Court or to happen in spite of said interventions. This would make it severely difcult for the process to
advance in the context of publicity and pluralistic debate and would highlight questions about disobedience
and the decision procedures aimed at avoiding the Court’s interventions, questions that would grow into the
dening axes of the subsequent actions initiated by the autonomous community authorities.
1.2.2 Constitutional Court Judgment 138/2015 and the scope of competence of an autonomous
community referendum, with reference in particular to proposals for constitutional reform
These questions were brought into focus in the process against the actions initiated by the Government of
Catalonia relating to the participative process that would nally be held on 9 November 2014. While the
Constitutional Court’s means of providing guarantees over its own decisions were already a central aspect in
this process (something that is examined in section 1.3), the Judgment ruling on this matter also introduced
certain elements relevant for the denition of the constitutional framework of the ‘right to decide’, focusing
on the question of the scope of competence over the object of this consultation and, in particular, any effect
great enough to require constitutional reform.
Constitutional Court Judgment 138/2015 considered the actions of the Government of Catalonia linked to
the consultation of 9 November 2014 to be unconstitutional. This was grounded in the link between these
actions and their objective (a non-referendum consultation), declared as unconstitutional in Constitutional
Court Judgment 32/2015. However, alongside this reason, the Court introduced a second reason, stating that
‘seeking a consultation with the questions indicated, the Government of Catalonia ignored the consequences
stemming from articles 1.2, 2 and 168 of the Spanish Constitution’. The reference to the content of the
questions relates to them being counter to the current constitutional framework, given that they demanded
constitutional reform, meaning that they fell outside the scope of competence for Autonomous Communities
as regards consultations (legal grounds no. 4) and pertained to ‘the course provided for by the Constitution
for these purposes’ (legal grounds no. 3, citing legal grounds no. 69 of Constitutional Court Judgment
31/2010). By doing so the Constitutional Court appears to rule out any autonomous community consultation
that suggests constitutional reform, and the question may be asked of whether this also applies for state
referendums as per article 92 of the Spanish Constitution.21
shall be returned to later in this article. An explanation of the rationale behind article 149.1.32 of the Spanish Constitution and the
need for state authorisation would have been particularly benecial. The Court has been joined by most experts on the doctrine in its
silence on these matters, failing to shed light on aspects such as the (political) effects on the sphere of state competence, the desire to
avoid conicts between two democratic legitimacies, or the problems a referendum poses in the context of a political stalemate. An
exception to this is the work of Tajadura, J., ‘La STC 42/2014…’, p. 85ff., which presents criticisms of the concept of referendums
based on its restriction and limitation.
21 In Constitutional Court Order 24/2017, relating to the parliamentary resolution raising the possibility of a referendum on
independence, the Court would return to this matter with the same exact arguments (legal grounds no. 9), although the nal decision
was given based on non-compliance with the previous decisions of the Constitutional Court and not for its direct contravention of the
Constitution. See section 1.4.3 of this article.
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It is true that the Constitutional Court’s assertions are made in addition to the other grounds for unconstitutionality
and, as such, it may be considered that they are not denitive. In any case however, they signal additional closure
to the scope for any autonomous community referendum; where the questions entail constitutional reform, the
constitutional channel for the ‘right to decide’ cannot include any possibility of a preliminary consultation.22
As regards another wholly different aspect, the Judgment clearly states that ‘the reason for the challenge is not
the citizen participative process itself, but rather – as alluded to in the main plea in the text of the challenge –
the Government of Catalonia’s actions which are inextricably linked with the consultation referred to’ (legal
grounds no. 4). As such, no consideration is given to the consultation as a process developed at the level of
the citizenry, without institutional links or support. This clearly opens the door to a social development of the
‘right to decide’ in the form of a consultation made by civil society.23
1.2.3 Constitutional Court Judgment of 10 May 2017 regarding Law 4/2010, on consultations via
referendums
Before studying the dynamics of preventing and executing the autonomous community actions, the
Constitutional Court briey returned to its role of setting the limits to the constitutional framework during
its recent Judgment of 10 May 2017, regarding Law 4/2010, of 17 March, on popular consultations via
referendums.24 The reduced amount of media and political attention given to this Judgment is evidence of
how the debate has been completely shifted by the dynamic of conict, compliance and sanctioning, leaving
aside the underlying question of how the constitutional framework is dened.
The 2010 Law on popular consultations – challenged and awaiting judgment since 2011 – contained a
general regulation on consultations that, unlike the 2014 Law, was not oriented almost exclusively towards
exercising the ‘right to decide’ and which, above all, was completely removed from the dynamic of unilateral
action and attempts to avoid constitutional control. This Law opted for a consultation model much closer to
that of parliamentary systems (and, in particular, that of state referendums), featuring parliamentary decision-
making and application of the standard norms in terms of the electorate, procedure and guarantees. The
key element in this Law was the need for state authorisation for any consultation within its framework, in
accordance with article 149.1.32 of the Spanish Constitution.25 This gave rise to the need to resolve whether
there are other general limits to the possibility of an autonomous community referendum, besides that of
state authorisation. In contrast, the specic question of the link between the consultation, the ‘right to decide’
and the limits stemming from constitutional reform were not a focus of the appeal, at least not formally.
a) The Judgment’s opportunity
The idea of a consultation among the citizens of Catalonia that would be promoted and called by the
Government of Catalonia but authorised by the State has been one of the alternatives discussed as a way of
channelling the constitutionally legitimate development of the Catalan sovereignty process. This could be
under the auspices of the 2010 Law, or under a more complex arrangement such as the passing of an Organic
Law for the Transfer of Powers or a reform of the Organic Law on Types of Referendum.26 In this regard, the
22 Although Constitutional Court Judgment 42/2014 does not make explicit reference to this possibility for a preliminary consultation
(with no dened framework or requirements), it seems difcult to refute that the points made mean the provisions in that Judgment
lead to a dead end. For this reason, it may be considered possible to reopen these questions more directly in the framework of state
regulation of an autonomous community referendum.
23 This is an opening that was not clear from the extensive jurisprudence handed down in Constitutional Court Judgment 31/2010,
which prohibits all forms of consultation (referendums and non-referendums) relating to constitutional reform and state competences
(legal grounds no. 69). This opened the possibility of prohibiting even civil actions, despite signicant problems in terms of basic rights.
24 This essential role of dening the constitutional framework, in the face of autonomous community legislation seeking to conform
to it, is behind the need to comment upon it at this point, disregarding chronological order; the next sections focus on the preventive
or compliance-ensuring role assumed by the Constitutional Court, faced with development of the Catalan sovereignty process that is
increasingly marked by confrontation with the jurisprudence and the constitutional framework previously dened.
25 Article 13 of the Law stated that ‘once the Parliament has approved the proposal for a popular consultation, the President of the
Government of Catalonia sends the request for authorisation to the Spanish Government’.
26 See the Report of the Advisory Council on the National Transition ‘La consulta sobre el futur polític de Catalunya’, from 25 July
2013, section 4.2. The four dissenting opinions in the Council for Statutory Guarantees of Catalonia’s judgment 19/2014 (on Law
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(relative) silence from the Constitutional Court in its Judgment 31/2015 meant this remained a possibility,
despite the fact that politically it does not currently appear feasible.
The Constitutional Court’s capacity for determining at which time it adopts its judgments is no secret. As such,
there was nothing to stop the Court from carrying on without providing a decision on the appeal and, as a result, not
prejudicating on potential future courses for the Catalan sovereignty process. However, this option was not taken,
and the Judgment from May 2017 represents the blocking of one more of the potential constitutional channels for
the process, a judgment handed down, of course, in a context of preventing the possibilities of an autonomous
community consultation, with the Court itself clearly expressing the ‘exceptional character’ of referendums.
But unlike the rest of the proceedings, in this case, rather than the Constitutional Court’s intervention relating
to the political dynamics of the Catalan sovereignty process, it was the other way around, with the Court
using a conict quite removed from said process to set the limits for the political discussion, and raising clear
questions about the Court’s scope for bringing forward or delaying its decision on an appeal and how the
decision’s effects on a political discussion are taken into account.
b) The preserve of organic law and the requirement that referendums be regulated by the State
The Constitutional Court declared the 2010 Law to be unconstitutional for breaching the special condition given to
the regulating of referendums, an activity that is the preserve of three gures: the State, organic law or, specically,
the Organic Law on Types of Referendum. To summarise, from the fact that developing the basic right of political
participation (article 23 of the Spanish Constitution) is the preserve of the organic law, the Court infers the need
that it be the State that establishes the possibility of any autonomous community referendum (legal grounds no.
5b), thus rejecting any idea that article 92 could directly provide constitutional grounds for one to be established.
Although it assumes there is no obligation that organic law provide all the regulation, and that it may leave some
aspects to the autonomous community legislator (legal grounds no. 5c) as is the case in municipal consultations,
the Court adopts a more restrictive view as regards autonomous community referendums, as the autonomous
community can only intervene in an ‘accessory manner’ (legal grounds no. 6a).
It is worth highlighting that the grounds for these assertions did not require great amounts of effort from
the Constitutional Court, which limited itself to recalling the statements made in article 92 and in its own
jurisprudence (which, it should be remembered, do not constitute the ratio decidendi for the corresponding
judgments and, as a result, are not especially strong grounds),27 and in particular its defence against referendums,
stating that it is ‘the exceptional character of referendums (…) that prevents the ordinary legislator – any
legislator from our composite state – from freely deciding upon types of referendum, and which consequently
establishes that only the organic law referred to in article 92.3 of the Spanish Constitution can introduce (…)
new forms of popular consultation via this route’ (legal grounds no. 6c). But neither the exceptional character
of referendums nor the possibility of considering Autonomous community referendums as implicitly included
in article 92 of the Spanish Constitution are subjected to proper analysis.28
Such analysis would have been very benecial in relation to the surprising content of legal grounds no.
4, where the Court offers a brief review of European comparative law that shows precisely the opposite
solution on the possibility of regional referendums. However, the Court does not see t to explain which
characteristics of the Spanish legal order justify its decision.29
10/2014) also refer to these alternatives. Informed views can also be found in Galán, A., ‘Del derecho a decidir a la independencia…’,
p. 892ff., or in greater length in Ridao i Martín, J., ‘El dret a decidir. La consulta sobre el futur polític de Catalunya’, Institut d’Estudis
Autonòmics, Barcelona, 2014.
27 Neither of them contained judgment on an action that would assume intervention for authorisation from the State: Constitutional
Court Judgment 103/2008 referred to a ‘unilateral’ consultation, as did Constitutional Court Judgment 31/2015. Constitutional Court
Judgment 31/2010 referred to abstract state regulation of referendums. In addition, the silence in Constitutional Court Judgment
42/2014 was a clear indication of the possibility for interpretations along the lines of Law 4/2010.
28 Constitutional Court Judgment 42/2014 had already mentioned the ‘extraordinariness’ of referendums (legal grounds no.
3), albeit without offering specic arguments. An interesting and very well developed discussion relating to this can be found in
Tajadura, J., ‘La STC 42/2014...’, p. 85ff.
29 In this context, notable for its absence is reasoning from the Court specifying the intended purposes of state authorisation
and the purposes that are not sufciently fullled by this means, thus requiring organic law regulation. A literal interpretation,
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As such, the Judgment breaks new ground by establishing the need for prior reform of the Organic Law
on Types of Referendum before an autonomous community referendum is possible, thus ruling out any
other potential means of holding a referendum with state authorisation, and putting an end to practically all
considerations over questions relating to control over autonomous community referendums.
1.3 Exercising the ‘right to decide’ within the constitutional framework: the calling of the consultation
for 9 November 2014 and the suspension of the corresponding actions
Following the challenge to Law 10/2014, a signicant change can be seen in the political debate and the
actions of both the institutions of the Government of Catalonia and the Constitutional Court. This matter in
hand is no longer the denition of a legitimate constitutional framework for the ‘right to decide’, but rather
the exercising of this right under the Government of Catalonia’s conception of this framework,30 centred on
the calling of a consultation for 9 November 2014 and the subsequent development of actions relating to this
participative process. As a result, the interventions from the State in general and the Constitutional Court in
particular no longer claim to address legal doubts on the scope of constitutionally legitimate actions, rather
they seek essentially to prevent actions that contravene the constitutional framework dened by the Court.
Initially the debate was channelled towards the suspension of the autonomous community actions as the key point of
focus, essentially before the holding of the consultation on 9 November (Constitutional Court Judgments 31/2015
and 32/2015), and then later the debate turned to the disobedience towards the Court’s decisions in relation to the
actions to assist the holding of the participative process that took place (Constitutional Court Judgment 138/2015).
The automatic suspension of the autonomous community actions challenged by the State is nothing new
for the Catalan sovereignty process, and its notable effects on the efcacy of the autonomous community
actions has been highlighted repeatedly.31 A suspension based on article 161.2 of the Spanish Constitution
is normally made in cases where there are doubts over the constitutionality of an action, legislation in most
cases, and there are therefore arguments for its suspension, meaning its legal effects are temporarily removed.
However, its use in the context of the Catalan sovereignty process and the actions relating to the consultation
on 9 November 2014 differed in certain respects, analysed in the next section.
Examination of this use of suspension (essentially in the three proceedings mentioned) brings up specic
details worth highlighting as regards the object of the suspension (section 1.3.1), the delimitation of its
content (section 1.3.2) and its censuring effects (section 1.3.3).
1.3.1 The objects (one-off pieces of legislation, parliamentary resolutions and executive actions relating
to suspended legislation) and purposes (censuring or executive prevention) of the suspensions
Of the suspensions handed down on actions related to the Catalan sovereignty process, hardly any reect
the typical suspensions seen, where a piece of legislation that calls for a (new) trial of constitutionality
is challenged and its legal effectiveness is suspended, or an act that, in itself, is considered to contravene
the constitutional framework (not for developing or exercising suspended legislation, as by denition
such legislation would not be applicable due to its suspension). In contrast, the suspensions on the Catalan
sovereignty process actions have the following unique features:
- Suspension has essentially affected just one piece of legislation, the 2014 Law on non-referendum popular
consultations.32 However, even in this case there are specic elements, it being a piece of legislation aimed
something seldom used by the Constitutional Court and constitutional jurisdiction, in this case plays the main part without stating the
constitutional purposes it is based upon. As such, in the political debate the Court’s reasoning carries very little weight, a signicant
point that shall be returned to later.
30 A conception already rejected by the Constitutional Court, rst as a precursory ruling (the suspension of Law 10/2014 and
Decree 129/2014) and then denitively (Constitutional Court Judgments 31/2015 and 32/2015).
31 For a general view, see the works contained in Government of Catalonia (ed.), ‘La suspensión de las leyes autonómicas en los
procesos constitucionales’, Institut d’Estudis Autonòmics, Barcelona, 2005.
32 Ruling of 29 September 2014. Other pieces of legislation that for various reasons could be considered not very ‘legitimate’ have
also been the object of suspensions: the precepts challenged in Law 3/2015, of 11 March, on scal, nancial and administrative
measures (with very minimal content, as shall be seen), the object of Constitutional Court Judgment 128/2016, of 7 July; the
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at just a one-off use, the consultation of 9 November 2014, which was called and almost immediately
suspended. As a result, its mere temporary suspension meant prohibition of the development of the Catalan
sovereignty process (at least in the desired timeframe) and the suspension became the central focus of the
case, albeit continuing with its purely preventive function as regards the specic action challenged.
- A signicant number of the suspensions handed down have affected parliamentary resolutions.33 Despite
the fact that the challenging of parliamentary resolutions, as already noted, is based on said resolutions
resulting in legal effects, the exact nature of these legal effects is sometimes a complicated matter. The
Constitutional Court has emphasised in particular the legitimising effects of subsequent actions resulting
from these resolutions, such that their suspension has essentially and increasingly been a way to censure
the parliamentary authorities, aiming to avoid similar or related future actions. This clearly signals the
idea of suspension of a process or abstract contents as opposed to the suspension of specic actions.
- Lastly, the suspension decisions in the recent proceedings have affected acts challenged on the basis
of their non-compliance with previous judgments, for which decisions ruling unconstitutionality were
returned (Constitutional Court Orders 170/2016 and 24/2017). Coming to the fore in these cases is
the idea of a process that has already been declared totally unconstitutional, giving legitimacy to
subsequent executive suspension decisions, as well as the function of preparation for future decisions
and actions relating to compliance and execution of the affected measures, and as a result the idea of a
reaction in the face of disobedience, an aspect examined in section 1.4 of this study.
1.3.2 The content of the suspension
The suspension and its content posed important questions for actions linked to the Catalan sovereignty
process and, in particular, their content. While beforehand the result of suspensions was limited to removing
the effects of the legislation or act challenged, the Constitutional Court subsequently began to develop a
material effect from the suspension, dened not by the legislation or act, but by its objective, thus extending
its scope to legislation or acts other than that suspended.
The rst step in this direction came again in the challenge to the material actions relating to the 9 November
consultation (Constitutional Court Judgment 138/2015), while the previous suspension of the Law and
decree on the consultation had kept to the traditional parameters.34 In contrast, the suspension of the material
actions35 relates to the actions challenged ‘and to the rest of the actions for preparation of said consultation
or linked to it’. As such, the Constitutional Court takes on a preventive role, linked not only to the actions
it is aware of but also to an outcome to be prevented (avoiding Catalan institutions from participating in the
consultation), something that is projected over any potential action.
The expansive range of implication that stems from this approach can be linked with the start of an impetus to
search for alternative forms of actions and non-compliances, something examined shortly. However, it raises some
problems about the effective scope of the suspension and the resultant obligations: the dividing line between justied
uncertainty (derived from this abstract and pro futuro formula) and an excuse for conscious non-compliance is
blurred, and this has already become a topic for legal debate, rstly in Constitutional Court Order 292/2014, in
which the Court refused an appeal for clarication on the suspension of the decree calling the consultation, for
precepts challenged in the Law on Foreign Actions (likewise of minimal content in terms of legislation and mostly unrelated to the
Catalan sovereignty process), the object of Constitutional Court Judgment 228/2016; and lastly, some precepts of Law 4/2017, on
Budgets for 2017, which are basically forecasts of budgetary appropriations. The decrees that have been the object of suspensions
(Decree 16/2015, of 24 February, creating the Commission for National Transition, as well as 2/2016, of 13 January, and 45/2016,
of 19 January, regarding the creation and naming and functions of the Department of Foreign Affairs, Institutional Relations and
Transparency) are almost exclusively related to organisational matters.
33 Of the ve resolutions challenged, four have been suspended (in the proceedings of Constitutional Court Judgments 42/2014 and
259/2015 and Constitutional Court Orders 170/2016 and 24/2017).
34 Constitutional Court Judgment 31/2015 includes (background fact no. 2) the suspension of the precepts challenged ‘and
whatever acts or resolutions may have been created by virtue of its application’. Constitutional Court Judgment 32/2015 related to
the suspension of the resolution challenged (background fact no. 3).
35 Ruling of 4 November 2014, recalled in the background facts of Constitutional Court Judgment 38/2015, no. 3.
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effectively entailing an attempt to change the decision,36 and secondly in the judgments of the criminal proceedings
taken against the Catalan Government authorities accused of disobeying these suspension rulings.37 Recent orders
of execution from the Court (Constitutional Court Orders 140/2016, 171/2016 and 24/2017) show that this
indeterminateness is also apparent in the content of the judgments, as shall be seen further on.
1.3.3 The censuring effects of the suspension and judgments and the route towards guaranteeing
compliance with the rulings
The repetition of actions the Constitutional Court considered to be non-compliant with its decisions has
increasingly lent its rulings a tone of growing censure, both in its suspension rulings and in its judgments on
the challenges linked to the 9 November consultation.
Indeed, these censuring effects were central to the Constitutional Court Judgments 32/2015, on the decree
calling the consultation, and 138/2015, on the material actions linked to the 9 November consultation; this
was despite the cancellation of the objects of the challenge not having any effect, as the Law had already
been cancelled and the actions completed. However, the Court emphasised particularly strongly the pro
futuro obligations of the Catalan Government authorities. This involved not only formulations that clearly go
beyond the actions that are the object of the proceedings, but also personalisation in the communications to
autonomous community authorities. The sights were then already set on sure-re ways to tackle disobedience,
something that would be a feature of the future rulings (see section 1.5).
1.4 Political expression of intentional rupture with the constitutional framework: disconnection and
the actions challenged
The interventions from the Constitutional Court, as discussed above, have met its objective of delimiting
the legal framework in which the Catalan sovereignty process could run its course, and in doing so have
prevented almost all of the actions contained in the Catalan Government institutions’ road map. The denitive
and binding nature of the Court’s rulings has led autonomous community institutions to give up actions
considered to be unconstitutional, or to change them for other actions different to those they had defended
(before the Court, at least), proceedings conforming to the framework dened by the Court.
This pattern was broken when actions were initiated that were seen to be intentionally in contravention of the
constitutional framework and the rulings adopted, regardless of whatever arguments could politically and legally
justify38 their approval and the actions of the people responsible. In this new stage of the process, the subject of the
discussion changed, no longer being simply the consultation, but shifting to the actions that pursue independence
(and which sometimes return to the topic of the consultation), thus reinforcing the dynamic of rupture. The matter
debated is no longer about whether the actions are constitutional or not, but rather whether they can be brought
about and achieve the sought-after effects. Meanwhile, the objective of the Court’s intervention shifted completely,
from the denition of the legal framework to guaranteeing said framework and the means of doing so.
These features, which had already been mentioned in some previous resolutions (section 1.4.1), are embodied
chiey in the Parliament of Catalonia’s Resolution 1/XI, of 9 November 2015, on the start of the Catalan
sovereignty process, and the corresponding Constitutional Court Judgment 259/2015, of 2 December (section
1.4.2), as well as subsequent rulings from the Constitutional Court that, by way of the orders of execution
from this judgment, attempt to hinder the adoption or the effects of the subsequent actions of the Parliament
(section 1.4.3) and Government (section 1.4.4) of Catalonia.
36 Constitutional Court Order 292/2014, of 2 December, rejecting the request for afrmative clarication that ‘under the guise of
a request for clarity, what in reality is requested is a new pronouncement on the scope of the suspension made, something that is of
course inadmissible through a simple request for clarication. As such the clarication is not granted, as in this case it is not tting
to clarify moot points or to make up for any omission.’ (legal grounds no. 5).
37 Supreme Court Judgment 972/2017, of 22 March (Criminal Court), Third legal grounding, III and IV; and Higher Court of
Justice of Catalonia Judgment 1/2017, of 13 March (Criminal and Civil Court), First legal grounding, section 1.1.
38 While politically there have been attempts to justify these actions based on democratic principles and, above all, the legitimacy
of disobedience in certain contexts – a question outside the aims of this study, from a legal perspective the approach taken has been
to question the existence or clarity of an order (that was disobeyed), to defend the existence of duties to act against the Court’s
decisions, or to stress the importance of parliamentary inviolability.
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1.4.1 Initial considerations of disobedience: criminal proceedings resulting from the 9 November
consultation
The holding of the participative process on 9 November and the Government of Catalonia’s actions in relation
to it, in spite of the aforementioned suspension rulings from the Constitutional Court, led to the Court making
its rst pronouncements on the compliance and effectiveness of its rulings, limited as they were initially
to the tone of censure described in previous sections. However, the matter of ensuring compliance with its
rulings then begins to rule the debate, via two channels, which would be key to the Court’s future moves:
- Firstly, criminal proceedings in relation to the disobedience against the Constitutional Court’s rulings,
brought against the President of the Government of Catalonia and three ministers of his government
for their actions in relation to the 9 November consultation. Although the proceedings for disobedience
would result in guilty verdicts,39 the fact they were brought after the actions were taken (and as such the
impossibility of preventing them), their lengthy duration, their effects on the political debate and the
technical difculties as regards dening the type of criminal litigation are reasons to believe alternative
means of reaction to the disobedience need to be developed, ways that are quicker and shorter.
- In line with this, working with extraordinary speed the Spanish Parliament approved a motion to reform
the Organic Law on the Constitutional Court, giving the Court the power to issue orders of execution to
ensure compliance with its rulings.40 Although the reform is still yet to be applied sensu stricto,41 the fact
that it has been passed undoubtedly boosts and reinforces the Court’s intervention by way of its orders
of execution and the statements given in the corresponding rulings – something that is examined shortly.
1.4.2 The Parliament of Catalonia’s Resolution 1/XI, of 9 November 2015, on the start of the
Catalan sovereignty process, and the corresponding Constitutional Court Judgment 259/2015
Resolution 1/XI was the rst time an act was formally adopted in direct and intentional contravention of the
constitutional framework.42 The confrontation is so evident that the arguments made to the Constitutional
Court make no attempt to defend the constitutionality of the Resolution’s content, rather they focus solely on
its nature as a parliamentary act, without legal consequences, merely the expression of a political position,
returning to the matter already discussed in Constitutional Court Judgment 42/2014 and requesting that it
be reopened with a change in the Court’s jurisprudence.43 The refusal to reconsider this jurisprudence, less
debatable this time than in the previous case,44 meant there was no alternative but to declare the Resolution
39 Supreme Court Judgment 972/2017, of 22 March (Criminal Court), and Higher Court of Justice of Catalonia Judgment 1/2017,
of 13 March (Criminal and Civil Court). Both proceedings resulted in a considerable amount of media attention on the case and
the elements contributing to the crime of disobedience, particularly the need (or lack thereof) of a personalised requirement for
compliance with the ruling, and the clarity of the order disobeyed.
40 Organic Law 15/2015, of 16 October, on reform of the Organic Law on the Constitutional Court. In this regard, Constitutional
Court Judgments 185/2016, of 3 November, and 215/2016, of 15 December, as well as the opinion of the Venice Commission on
the reform (CDL-AD(2017)003-e, adopted on 10 March 2017). An initial view on Constitutional Court Judgment 185/2016 in
Roig Molés, E,. ‘Siete cuestiones y una conclusión a propósito de la Sentencia del Tribunal Constitucional sobre la ejecución de
sus resoluciones’, [blog post, online] Instituto de Derecho Público [accessed June 2017], and Nieva Fenoll, J. and Roig Molés,
E., ‘El Tribunal Constitucional y sus nuevas, e insólitas, facultades de ejecución’, in Diario La Ley no. 8892, 2017. For greater
detail, Villaverde Menéndez, I., ‘Cumplir o ejecutar: la ejecución de sentencias del TC y su reciente reforma’, in Teoría y Realidad
Constitucional, no. 38, 2016, p. 643ff.
41 The Constitutional Court has repeatedly insisted that its powers to ensure compliance with its rulings are retrospective (for
example Constitutional Court Order 170/2016, of 6 October, legal grounds no. 2), but has so far limited itself to issuing censure and
transferring the matter to the Public Prosecutor, without exercising its powers to issue nes, suspensions of ofcials or substitute
enforcement, as provided for in the reform.
42 Among other things, the Resolution refers to the ‘start of a process to create an independent Catalan state’ (2nd section), the lack
of subordination ‘to decisions from Spanish state institutions, in particular the Constitutional Court’ (6th section) and the ‘exclusive’
compliance to legislation and mandates from the self-same Catalan Parliament (8th section). In relation to this see Montilla Martos,
J. A., ‘La sentencia del Tribunal Constitucional sobre la Resolución 1/XI del Parlamento de Cataluña’, [blog post, online] Instituto
de Derecho Público [accessed June 2017].
43 Constitutional Court Judgment 259/2015, background fact no. 4 and legal grounds no. 2.
44 Despite its identical nature, the denition of mandates and consequences explicitly detailed in Resolution 1/XI as well as its
clearly imperative and solemn tone mean that the criteria of apparent effectiveness and legitimisation of subsequent actions, used by
the Court to evidence the existence of ‘legal effects’, becomes much clearer in this case.
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unconstitutional and to annul it. In doing so the Court reiterated its considerations from its previous
jurisprudence regarding the unconstitutionality of the recognition of sovereignty, the fact that all public
powers are subject to the Constitution, the need to understand that democratic principles exist within the
constitutional framework and in conjunction with other principles such as the rule of law, and recognition of
the freedom to propose and defend ideologies and proposals that go against the Constitution (a basic premise
of pluralism) provided this follows the procedure for constitutional reform.
The line the Resolution takes, explicitly confronting the constitutional framework, also excluded any
possibility of new denition of this framework by the Constitutional Court, which restricted its Judgment
purely to a decision in favour of annulment. However, this decision would become fundamental to future
rulings that, in the form of orders of execution, the Court would adopt over the following months in relation
to actions initiated by the Catalan Parliament and Government to promote the sovereignty process.
1.4.3 The parliamentary resolutions promoting the Catalan sovereignty process
Over the course of 2016, in terms of parliamentary impetus the development of the Catalan sovereignty
process was dened by three further resolutions,45 conrming the course of express and direct confrontation
with the Constitution and the Constitutional Court, and shifting the Court’s subsequent actions fully into the
terrain of guaranteeing the effectiveness of its rulings and reacting to non-compliance. Accordingly, where
judgments for declarations of unconstitutionality proceedings were seen previously, order of execution
rulings now took their place, a clear marker of the Court’s changed standpoint.
However, because of the parliamentary nature of the resolutions, the Catalan sovereignty process continued
to develop in the context of political claims without binding effects, a limitation that so far allayed the
severity of the confrontation with the Constitutional Court and opened up considerable ambiguity and a lack
of general effects as regards both the Court’s rulings and the resistance to them.
a) The formation of the study commission on the constituent process and its conclusions, and the duties of
parliamentary authorities
The formation of the study commission was challenged through an order of execution, this method being
used for the rst time. As such it was a chance to assess some of the elements in this type of proceedings,
elements of particular importance to the function taken on by the Constitutional Court of monitoring the
Catalan sovereignty process and ensuring compliance with the constitutional framework.
The order of execution enables the Constitutional Court to intervene quickly46 and gives considerable
exibility as regards linking with the rulings on which it bases its executive actions. In this regard, the Court
chooses to comprehend the Catalan sovereignty process in an almost global sense, regardless of which
specic actions or contents are challenged: where an object declared unconstitutional can be identied in
some way, the order of execution can be projected over other actions that, in a material sense, are quite
separate from those considered in the judgment being executed.47
The order of execution also allows the Constitutional Court stricter parameters for its examinations. Firstly,
this relates to the challengeable nature of the actions, as there can be considerable doubts over the denitive
character and the causing of legal effects (general criteria allowing a challenge) in the formation of a study
commission. And secondly it relates to consideration of the potential implicit purposes of actions: this is
a factor that must be left aside in an ‘ordinary’ examination of unconstitutionality,48 but in contrast it may
45 Resolution 5/XI, of 20 January 2016, on the creation of parliamentary commissions and specically creation of a study commission
on the constituent process; Resolution 263/XI, of 27 July 2016, ratifying the report and the conclusions of the study commission on
the constituent process; and Resolution 306/XI, of 6 October 2016 on the general political orientation of the Government of Catalonia.
46 The Resolution on the formation of the commission was passed on 20 January, it was challenged on 1 February and the ruling
was handed down on 19 July. But with the Resolution on the commission’s conclusions, the process was even faster: it was passed
on 27 July, challenged on 29 July, suspended on 1 August and the nal ruling given on 6 October.
47 As such, Constitutional Court Order 141/2016 referred to the formation of a study commission and its works in terms of the
execution of Constitutional Court Judgment 259/2015, which referred to the Resolution on the start of the Catalan sovereignty process.
48 This is particularly relevant to Constitutional Court Judgment 128/2016, of 7 July, which is referred to in the next section.
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receive special consideration in the context of an order of execution, particularly when the specic situation
shows a probability of non-compliance, despite it not having yet been manifested.49
In the rst of these orders of execution the examination’s strictness and intensity is complemented by express
moderation from the Court in its ruling: the formation of the commission was not annulled and neither was
it considered to contravene the previous rulings (thus rejecting the main point of the challenge); in contrast
however, the order of execution was approved in its point that the commission serves the material purpose
of assisting the Catalan sovereignty process as per the terms provided previously in Constitutional Court
Judgment 259/2015. The corresponding decisions for censure and its communication to the parliamentary
authorities were adopted, including an explicit warning that the commission’s proposal for its conclusions,
which the Court had seen before the judgment, was unconstitutional.
This position – still open to the possibility of the parliamentary actions for the Catalan sovereignty process
developing constitutionally – is left behind in the second of the orders of execution,50 when it was known that
the commission’s conclusions had been adopted. In this case there are fewer doubts about justication for
executive action, due as a matter of fact to the previous order of execution. The Court had already issued a
warning about the unconstitutionality of the commission’s conclusions in the previous order, and its content
once again confronted the constitutional framework and reiterated some of the provisions present in the
parliamentary resolutions of 2013 and 2015 that had been annulled. This caused the Court to harden the tone
of its ruling, to hand down a decision for annulment and repetition of its personal warnings regarding future
actions, and, above all, to adopt two new approaches as regards its jurisprudence on the Catalan sovereignty
process:
- Firstly, special emphasis on the matter of parliamentary authorities’ duties to guarantee and ensure
compliance with the Constitutional Court’s rulings (an issue already introduced in the ruling from the
previous order of execution),51 in particular rejecting the existence of conicts with procedural duties
derived from parliamentary regulations, which should always be interpreted in terms of all power
being subject to the Constitution and the judgments of the Constitutional Court.52
- And, as a result, the decision to inform the Public Prosecutor of the actions carried out by the President
of the Catalan Parliament, for the eventuality of any criminal proceedings that could be brought.
This meant that for the rst time the Constitutional Court took it upon itself to limit the political debate and
people’s rights, not as an institution providing control over decisions made elsewhere, but as a court of rst (and
only) instance, itself creating the restrictions, and what is more doing so in a particularly undened procedural
framework most notable for its speed and summary character, this being the nature of an order of execution.
49 In particular Constitutional Court Order 141/2016, legal ground no. 6, where there is an express hardening of the control
parameter used in the proceedings for a resolution on the creation of parliamentary commissions, due to the similarity with some
of the components of the resolution annulled in Constitutional Court Judgment 259/2015 and because of the sequencing of the
Parliament’s actions.
50 Order of execution 170/2016, of 6 October.
51 Specically, the Court makes reference to the ‘duty to impede or prevent any initiative that entails ignoring or evading the orders
pronounced in Constitutional Court Judgment 259/2015 and in Constitutional Court Order 141/2016’ (legal grounds no. 8).
52 The Constitutional Court denied the existence of a conict in this specic case, asserting that the actions of the President and
the members of the Board of the Parliament of Catalonia ‘were under no obligation to scrupulously comply with regulations in a
way that was incompatible with the warnings contained in Constitutional Court Order 141/2016’ (legal grounds no. 8), and gives a
general reminder that ‘the contents of the provisions, resolutions or acts emitted by any kind of public power do not detract from the
complete scope of competences the Constitution confers upon this Court’ (legal grounds no. 8) and that ‘the regulatory provisions
from parliament cannot contradict the rule of the constitution as the highest law, nor can they be interpreted so as to contradict with
the statements of the Court’ (ibid). In contrast, the Constitutional Court gives no opinion on the position of civil servants working in
the Catalan Parliament in the event of a conict between the orders of the Court and the duty to obey the instructions and authorities
of the Parliament, a matter raised by the Parliament’s Secretary General in his arguments, detailed in background fact no. 14 from
Constitutional Court Order 170/2016. Despite the State Attorney making a precautionary request for express prohibition on calling
the parliamentary bodies to debate or vote on initiatives to develop Resolution 263/XI, the Constitutional Court did not respond to
this request in the ruling for acceptance or in the judgment, avoiding the conict referred to in the arguments of the Parliament’s
Secretary General. This situation also highlights the Constitutional Court’s considerable freedom as regards its orders of execution,
not even referring to one of the requests included in the document which instituted the proceedings.
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It is true that the Constitutional Court has not exercised its full powers (nes and suspensions of ofcials)
on the authorities affected, although it has on the public debate (as what it imposes is a prohibition on the
holding of certain debates). It should also be remembered that the passing of the case details to the Public
Prosecutor makes it hard for this institution not to bring the corresponding criminal proceedings and represents
a considerable amount of pressure on the authorities affected, which as a result limits the parliamentary
debate even further. In predictable fashion, the Court assumes this role in a case that is particularly clear-cut
as regards the existence of non-compliance (although the effect on the parliamentary debate was already
adopted in other rulings, particularly those involving suspensions), but once this path has been taken, the
door is open for it to be applied to cases that are less straightforward.
b) Resolution 306/XI, of 6 October 2016, on the general political orientation of the Government of Catalonia
The next proceeding in which the Constitutional Court applied these powers raised further doubts as regards its
executive nature. While the content of Resolution 306/XI is yet another clear manifestation of unconstitutionality,53
the degree to which it is non-compliant with the Court’s previous decisions is less clear, as its origin and content
are different from those of the resolution addressed in Constitutional Court Judgment 259/2015.54 In this case
the Court widens its considerations to include the whole Catalan sovereignty process, thus extending the duties
of compliance to any actions that pursue the sovereignty process’s aim (dened as ‘the constituent process in
Catalonia, aiming for the creation of an independent Catalan state…’, legal grounds no. 7). This is something
that could in some cases result in major problems of denition, potentially leading to new proceedings for
unconstitutionality, more serious than a mere order of execution. However, above all it puts the authorities charged
with ensuring future compliance with decisions in a hard position, having to conduct trials of quite some difculty
on whether or not there is non-compliance. This in turn will have important knock-on effects on their functions and
general obligations to ensure parliamentary activity and on the eventuality of criminal proceedings.
The Resolution and the subsequent order of execution in the Constitutional Court continues the pattern already
seen of confrontation followed by immediate reaction and a hardening of tone from the Court:55 conrmation
of the global consideration of Catalan sovereignty process actions in terms of their unconstitutionality and
prohibition,56 repetition of the duty to guarantee constitutionality that is incumbent on the parliamentary
authorities and is unaffected by their autonomy or by the duties that stem from their regulations, and, lastly, the
annulment decisions, personalised warnings on the duty of compliance, and potential criminal responsibility
and transfer to the Public Prosecutor for whatever criminal proceedings may arise.57
These decisions have a notable dissuasive effect, as do the resulting restrictions on the parliamentary debate
and on the rights of the affected authorities. They also represent further development in the leading role
taken by the Constitutional Court in the conict with the Catalan sovereignty process, with the Court no
longer being an impartial way to get rulings on disputes, but instead an institution responsible for ensuring
compliance with its own decisions. As such it has a strong interest and is clearly at odds with those it
considers to be not complying.58
53 The points challenged in the Resolution referred to the ‘binding referendum on independence’, even ‘in the absence of political
agreement with the Spanish Government’, to the adoption of a jointly presented text on the legal system that would regulate ‘the
succession of the legal code, nationality, basic rights (…) judicial power during the transitory period between the proclamation of the
Catalan Republic and the adoption of the Constitution’, among other statements that clash directly with the constitutional framework.
54 While the rst Resolution made reference essentially to the institutional process for the declaration of independence, the new
Resolution focused primarily on the referendum.
55 Using expressions such as ‘absolute contradiction’, ‘conrmation of anti-judicial intent’, ‘evading the obligation of compliance’,
‘failing to heed the repeated warnings from this Court’ and ‘directly contravening the repeated statements of this Court’.
56 ‘The resolution (…) carries the same purpose as resolutions I/XI, 5/XI and 263/XI: the start of a constituent process aimed at the
creation of an independent Catalan state in the form of a republic, the stages of which are described in the fth section of Resolution 263/XI’
(legal grounds no. 7), and the Court adds that, in relation to the referendum, its anti-constitutional nature was established and conrmed in its
Judgments 31/2015, 32/2015 and 138/2015, so the order of execution also refers to these judgments, as is conrmed in legal grounds no. 11.
57 This now extends to the members of the Board of the Parliament of Catalonia who voted in favour of the initiative that led to the resolution.
58 In this regard, much importance can be attached to the questions raised regarding the Court’s judgments on the reform of the
Organic Law on the Constitutional Court, referring precisely to the change in the Court’s position (something highlighted by the
Venice Commission) and the rights of the people at whom the order of execution measures were directed, an aspect that was latent in
the discussion on the potentially punitive nature of the orders. On this matter see the references earlier in this work, in footnote no. 40.
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And, as regards the execution and exercising of its powers in this area, this is the point to which the Constitutional
Court’s jurisprudence has arrived so far, without any call for use of the provisions made in the reform of the
Organic Law on the Constitutional Court for nes, suspensions of ofcials or substitute enforcement. This
situation could change if the Catalan Government institutions decide to move on from their parliamentary
actions without binding effects (but with legal effects, according to the Constitutional Court’s interpretation)
to actions with consequences affecting citizens – an area where there has not yet been any disobedience to the
suspension and annulment rulings handed down by the Court, as detailed in the next section.
1.4.4 Preparations of administrative actions linked to the Catalan sovereignty process
Besides the parliamentary actions highlighted, the Catalan sovereignty process has also developed through
the adoption of varying legislation essentially aimed at preparing administrative actions to provide resources
in sectors of supposed importance, based around the concept of so-called ‘state structures’. This has not
been so much legislation changing the regulation of citizens’ rights and obligations as it has regulatory
preparations to enable or give mandates for future material actions by the executive.59 Naturally this has
reduced the immediate effects and, as a result, the effects of the judgments made to annul them.
Essentially there were three laws, two of which have been brought before the Constitutional Court for
judgment and the third of which has been challenged and is awaiting a ruling: Law 16/2014, of 4 December,
on foreign actions and relations with the European Union;60 Law 3/2015, of 11 March, on scal, nancial
and administrative measures;61 and Law 4/2017, of 28 March, on Catalan Government budgets for 2017.62 In
the same category are Decree 16/2015, of 24 February, creating the Commission for National Transition;63 as
well as Decrees 2/2016, of 13 January; and 45/2016, of 19 January, regarding the creation and naming and
functions of the Ministry of Transparency and Foreign and Institutional Relations and Affairs, which have
been challenged in the Constitutional Court and are awaiting judgment.64
59 In fact, it has been argued that in many of these cases this legislation was not actually that, but rather they were essentially
parliamentary resolutions purely for political effect, regardless of their legal text format. This was the argument made by the
Government of Catalonia in Constitutional Court Judgment 128/2016 (background fact no. 5, section d), considered and refused by
the Court in legal grounds no. 4.
60 This relates to Constitutional Court Judgment 228/2016, of 22 December. This was a proceeding that contained some points
linked to the discussion surrounding the Catalan sovereignty process, but which essentially addressed the Autonomous Communities’
capacities abroad. Relating to the focus of this study, it is worth highlighting the challenge of the use of the expression ‘public
diplomacy’ and the Court’s reasoning (legal grounds no. 11) behind its declaration of unconstitutionality, a decision contested
by some dissenting opinions. Neither the Law nor the Judgment refers to the Catalan sovereignty process, but based on the mere
mention of the activity ‘public diplomacy’, extra protection against the possible assumption of ‘the capacity to establish diplomatic
relations, which is the preserve of the State’ is linked to a line of jurisprudence close to preventive unconstitutionality or developed
‘by suspicion’ in connection with the Catalan sovereignty process, something looked at shortly.
61 Constitutional Court Judgment 128/2016, of 7 July, ruling on an appeal on the grounds of the unconstitutionality of various precepts
of this Law, contains a number of pronouncements linked to the Catalan sovereignty process (essentially legal grounds no. 4). These
relate to additional provisions 22 to 26 on approval of a master plan for a Catalonia tax agency, creation of an inventory of the assets
of Catalonia’s public administrations, a catalogue of strategic infrastructure, a draft bill for the creation of a Catalan Agency of Social
Protection and a plan on the energy and telecommunications sectors and on information systems and rail transport. According to the
appeal, all of these would be alike in their orientation towards the creation of ‘state structures’ in the framework of a ‘national transition
process’ aimed at achieving independence for Catalonia, meaning that here too there is the element of prevention or suspicion.
62 The unconstitutionality appeal was made against additional provision 40 and against the budget items referring to electoral
processes and citizen participation, once again in consideration of their potential use for the holding of a referendum on independence.
The appeal was declared admissible by the Constitutional Court (Government of Catalonia’s Ofcial journal, 12 April 2017), leading
to the automatic suspension of the precepts and various personalised warnings that will be referred to shortly.
63 Declaration of unconstitutionality by the Constitutional Court in its Judgment of 10 May 2017, based on the tasks assigned to
the Commission and which represented actions transforming the institutional position of the Autonomous Community of Catalonia,
something that can only be achieved through constitutional reform (legal grounds no. 5). The same Judgment was also handed down
on the Catalan Government’s plans regarding state structures and strategic infrastructure, which were declared unconstitutional due
to the extension of the limits to its competences, linking as it does explicitly to the Catalan sovereignty process and the achieving of
its purposes, something only possible via constitutional reform (legal grounds no. 7).
64 Declaration of admissibility by the ruling of 16 February, with the corresponding suspension and partial removal of the suspension
by Constitutional Court Order of 21 June 2016. The conict centres on the name ‘foreign affairs’ and represents yet another case in
which the question of unconstitutionality is raised on the basis of future actions that could be carried out or the potential implications
of a name. A brief commentary on this is in Roig, E. ‘Inconstitucionalidad por el nombre e inconstitucionalidad por sospecha’, [blog
post, online] Instituto de Derecho Público [accessed June 2017].
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All these actions and their corresponding judgments raise the matter of the administrative materialisation
of the Catalan sovereignty process and the provision of human and material resources by the Government
of Catalonia for the development of the process and for the future exercising of competences that currently
correspond to the State. The Constitutional Court considered the said actions unconstitutional for (a)
specically pursuing unconstitutional objectives by supposing a unilateral alteration of Spanish sovereignty,
meaning that they run counter to the distribution of powers65 or (b) representing actions that are illegitimate
by virtue of their competences, by their interference with state competences, a feature that is key to the rest
of the actions considered unconstitutional.66 Nevertheless, the Court accepted the measures that can be seen
as being within the limits of the Catalan Government’s scope of competence.67
The Constitutional Court makes clear its refusal that declarations of unconstitutionality can be based on a
potential purpose of the measure, on suspicion, or as prevention against future unconstitutional uses, things
that the Court’s jurisprudence has traditionally ruled out.68 However, the broad notion of interference with
state competences – which extends as far as the generation of an appearance or perception of legitimacy
for unconstitutional situations – is sometimes difcult to distinguish from the mere suspicion of future
unconstitutional actions.69 As such, a great deal of subjectivity is involved in the way it is perceived, and this
is of relevance when noting that no actions have (yet) been adopted that run counter to state competences or
the constitutional framework.
The Constitutional Court’s basic focus on avoiding future actions to develop the Catalan sovereignty process
– considered unconstitutional as a whole as per the analysis provided – can also be seen in its frequent
recourse to personalised communications and warnings of the duty to comply and prevent non-compliance
with the resulting responsibilities, which can be found in the rulings for admissibility of the proceedings or
the suspension rulings, and which have affected people at the top of the Catalan Government, and have been
notably far reaching.70
65 This was essentially the case in the Constitutional Court Judgment of 10 May 2017 on the Commission for National Transition
and on the Catalan Government’s plans for state structures and strategic infrastructure. There is a similar reasoning as per use of the
expression ‘public diplomacy’ in the Law on Foreign Actions (Constitutional Court Judgment 228/2016).
66 This was also so with Constitutional Court Judgment 128/2016 with regards to the additional provisions from Law 3/2015, on
scal, nancial and administrative measures relating to the master plan for a tax agency (unconstitutional in that it aims to provide
the Catalan Government’s tax agency with the means to assume and manage competencies that do not pertain to it: legal grounds
no. 6) the catalogue of strategic infrastructure (unconstitutional for interference with state competences on public safety: legal
grounds no. 8) and the master plan on the energy, telecommunications and rail transport sectors (unconstitutional for impinging on
state competences and not respecting the Court’s provisions: legal grounds no. 10), all of which were analysed on the basis of their
contents and their provisions.
67 This was the case for most of the precepts considered in Constitutional Court Judgment 228/2016, on the Law on Foreign Actions
and the additional provisions of Law 3/2015 on the Catalan Agency of Social Protection and the master plan for social protection and
on the inventory of the assets of Catalonia’s public administrations (Constitutional Court Judgment 128/2016).
68 In particular, in Constitutional Court Judgment 128/2016, in its legal grounds no. 5, featuring the decision to address ‘only
the statement and the content of the additional provisions that cannot be passed, for the purpose of their judicial interpretation and
review, due to their reference to manifestations, declarations or reports (…) whose form is removed from that of the parliamentary
procedure in which this legislation was approved…’. Further on, in the same legal grounds no. 5, the Court issues a reminder of the
inadmissibility of challenges that are ‘preventive or anticipatory of potential future unconstitutional actions’.
69 The question over appearance or perception as a legal effect has developed particularly in relation to parliamentary resolutions,
as already seen (especially in Constitutional Court Orders 141/2016, 170/2016 and 24/2017), but also in relation to provisions
on executive actions, for example with reference to the master plan for a tax agency, ‘this action brings into question the correct
distribution of public powers between the State and the autonomous communities…’ (legal grounds no. 5, section c), or with reference
to legal certainty in relation to the catalogue of infrastructure (legal grounds no. 8, section c).
70 A particularly clear example of this is the declaration of admissibility for the appeal against Law 4/2017, on budgets. The
Constitutional Court’s ruling of admissibility (Government of Catalonia’s Ofcial Journal, 12 April 2017) led to the automatic suspension
of the law’s precepts and the Court’s adoption of the decision to personally notify the President, ministers and Secretary General of the
Catalan Government, the Secretary General of the Vice Presidency and of Economy and Finance, as well as the general managers of
procurement and budgets. The Court issued a reminder of the duty to ‘impede or prevent any initiative that entails ignoring or evading
the suspension ruling’. In particular, the Court reminds them to abstain from initiating, processing or issuing any report and from creating
any agreements relating to the budget items challenged or any other (including the Contingency Fund) adopted in accordance with
additional provision 49, aimed at nancing any costs arising from the preparation, management and holding of the referendum process
or referendum referred to in the challenged additional provision; in particular the tendering, execution or overseeing of administrative
contracts tendered by the Catalan Government for participation in the preparation of the referendum; also to abstain from initiating,
processing or issuing any report and from creating any agreements for the extension, modication or transfer of the budget items
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In this manner the Constitutional Court manages to achieve its goal of reining in the development (at least in a
public and explicit way) of administrative resources intended for deployment and use as soon as a new state is
created, replacing the current state structures. And thus its preventive function extends its reach to the Catalan
Government administration’s organisational and planning actions, curbing the development of the Catalan
sovereignty process in yet another area.
1.5 Evading the Constitutional Court’s control: de facto proceedings and changes in approach
Over recent months, faced with the situation described above, Catalan Government institutions have adopted
courses of action that are essentially aimed at avoiding the interventions of the Constitutional Court or, at least,
at delaying them for the time being and thus enabling as a minimum the initial development of initiatives that are
incompatible with the constitutional framework. In doing so the intention has been to enable at least the adoption
of the corresponding decisions (avoiding the suspension or annulment of their initial acts or their processing) and
to reduce the time between the eventual suspension of the act (once it is adopted) and its effects, or even to delay
the moment of clear non-compliance with one of the Constitutional Court’s rulings as per its own terms.
In this regard, the calling of the consultation of 9 November 2014 provides a precedent, in that the passing
of its Decree was facilitated by the very elimination of its prior processing and of parliamentary discussion
of the question, date and other relevant details relating to the consultation.
The rst new action along these lines appears to be the decision taken by the Board of the Parliament of Catalonia
on 1 March 2016 to process Catalonia’s social protection laws, legal system and tax administration through a joint
presentation procedure. This was a way to avoid the presentation and processing of a draft law or bill, actions that
could have been the object of an order of execution in relation to Constitutional Court Judgment 259/2015, based
on the fact that they were explicitly contemplated in the suspended resolution (which was later annulled).71 In
contrast, the processing by way of joint presentation enabled the development of the parliamentary studies without
the need to initially dene a text, thus making it a procedure that was harder to shackle.
However, the decision was still subject to the Constitutional Court, but in this case via an appeal for the
protection of constitutional rights, leading to Judgment 224/2016, of 19 December, which annulled it for
breaching the rights of the members of parliament who made the appeal.72 This highlighted both a new means
of intervention for the Court and, in particular, problems of legitimacy arising from the effects this type of
action has on the rights and principles of public and democratic debate.73
Also affected by these problems, albeit in a way that is much more directly linked to the Catalan sovereignty
process, are The Catalan Government’s projects ‘for the preparation of state structures’ and ‘strategic
infrastructure’, plans that were published on the Catalan Government’s website and were mentioned by the
Catalan President during a public appearance on 17 February 2015. The Constitutional Court considered
that these were expressions dening an unsigned agreement made by the Catalan Government and therefore
challenged or any other budget items or the Contingency Fund; and, in general, to abstain from any other budgetary measure agreed
in pursuit of the alleged purpose, as covered by the precept of the challenged Law, including the modications of budgetary structures
foreseen in the second additional provision of the challenged Law that lend themselves to this purpose…’.
71 The fth section of Resolution 1/XI asserts that ‘The Parliament of Catalonia considers appropriate to begin within thirty days
the passing of legislation on the constituent process, the Catalan social security system and the Catalan Tax Agency.’
72 This Judgment was one with arguments not directly connected to the sovereignty debate, as the focus of its analysis was the
joint presentation procedure and its inapplicability in this case according to the parliamentary regulations, a use of parliamentary
regulations as a parameter of constitutionality that introduces some problems regarding the extension of constitutional jurisdiction,
as up until this point the Court’s efforts had been limited to suppositions of the breaching of constitutional precepts.
73 Less relevant in this regard was the conict regarding the declaration of admissibility on the resolution proposal that led to
Resolution 1/XI without the Board of Spokespersons having been formed. The appeals for the protection of constitutional rights that
were presented led to a favourable judgment from the Constitutional Court (once again strictly in the terms of parliamentary law
and without reference to the Catalan sovereignty process) with exclusively declaratory effects (Constitutional Court Judgment of
7 June 2016). In fact, in the context of this proceeding, the Constitutional Court refused to issue a precautionary suspension on the
processing of the Resolution, considering that the issue in hand was to check its constitutionality, not to protect basic rights that could
be protected instead by an appeal for the protection of constitutional rights (Constitutional Court Order 189/2015, of 5 November).
In relation to this see Vintró Castells, J., ‘Decisiones parlamentarias y Tribunal Constitucional’, [article, online] Agenda Pública
[accessed June 2017].
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declared the challenge on them admissible, despite them not being formal agreements and having a non-
denite character.74 From this point on, the Court has applied the jurisprudence stemming from Law 3/2015,
such that it considers to be unconstitutional any provisions on objects outside of their competence that
provoke, as a result, interference with the system of competences and their exercise by the party rightfully
entitled to do so. Accordingly the Court then annulled both plans.
Lastly, it is worth noting two further actions that are clearly aimed at avoiding intervention from the
Constitutional Court and which bring up a new set of problems.
- To start with there is the provision in the Law on Budgets on credits allocated generically for the
holding of electoral processes,75 which could be allocated to the holding of a consultation explicitly
prohibited by the Constitutional Court. This again throws up questions based on the use of open
expressions and the relevance or possibility of considering the suspicion of a future unconstitutional
use to be cause for unconstitutionality, something the Court has never openly accepted.76
- And then there is the debate on the creation and passing of the so-called ‘Law of Transition’ or ‘Law
of Disconnection’, dened doubly by its creation and discussion outside the parliamentary framework
(a) and its eventual passing through a fast-track single vote procedure (b) after a reform of the
parliamentary regulations to enable use of this procedure. The rst of these matters certainly raises the
possibility of criticism of the Catalan Government and the participant parliamentary groups for their
political use of the power to create legislation, but it does not alter the rights of other parliamentarians
or the publication of the processing of the legislation, which will in the future be required. As such, its
legitimacy does not appear to be questionable, and its effects are limited to delaying but not avoiding
the duty on the part of the President of the Board of the Parliament of Catalonia to avoid it being
processed, and its certain challenge and suspension if passed. The second matter – also worthy of
criticism from the point of view of the parliamentary debate’s need for public exposure and plurality
– is that the reform brings in laws that are basically the same as the regulations existing in other
autonomous community parliaments and those of the Spanish Parliament. However, parliamentary
debates raise doubts about whether proper criteria are used regarding the processing of the draft
legislation and its simplicity or nature, or whether use of the procedure might be generalised without
any limitations.77 In any case, use of the fast-track single vote procedure cannot prevent whatever
intervention from the Constitutional Court might be deemed necessary, it simply means that the object
of this intervention will be legislation that has already been passed. In this respect it worsens the
resultant confrontation and the tension regarding the predictable suspension and annulment.
1.6 The effects of the Constitutional Court’s intervention and the resulting transformations in the
Catalan sovereignty process
The Constitutional Court has become more or less the only state authority to intervene in the Catalan
sovereignty process. This option of having the constitutional jurisdiction take the lead has achieved three
clear goals: rst, it has (so far) prevented direct confrontation with the executive branch of the government
and, essentially, recourse to article 155 of the Spanish Constitution; second, it has reduced the pressure
on the Spanish Government and Parliament, facilitating a state response focused on the breaching of the
judicial-constitutional framework, without entering into a more complex political discussion, open to
nuances and varying positions in the heart of the Congress’s political groups, which above all would entail
74 Constitutional Court Judgment of 10 May 2017, (legal grounds no. 7).
75 This provision relates to three budget items named ‘electoral processes and popular consultations’ and ‘citizen participation
processes’, which were challenged and suspended ‘in relation to these items referring to costs linked to the holding of a referendum’
(Constitutional Court Ruling of 4 April 2017).
76 See footnote no. 68.
77 Article 135 of the Regulation, in the version published in the Ofcial Gazette of the Parliament of Catalonia no. 431 of 7
June 2017. In relation to this, Vintró Castells, J., ‘El Parlamento exprés: antecedentes y contexto’, [article, online] Agenda Pública
[accessed June 2017].
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taking responsible political positions; and third, most essentially it has done enough to prevent the Catalan
sovereignty process from developing the key actions that shaped its road maps.78
However, as well as achieving these objectives, the Constitutional Court’s interventions have had a profound
effect on the conguration of the Catalan sovereignty process, which has progressively transformed itself
due in great part to the judgments handed down and their consequences. This effect, described in detail in the
previous sections, is dened by the following aspects.
1.6.1 The judicialisation of the Catalan sovereignty process
The Catalan sovereignty process began essentially as a political movement, without expressing the judicial
form its development and objectives might take. Its objective is by denition outside what is subject to the
current constitutional framework. However, the Constitutional Court’s intervention has moved the focus
of attention to the legality of the process, i.e. seeking its judicial denition. This attention has not been on
the weight of its arguments as a whole, instead concentrating on the ways it might be achieved: through a
consultation or through actions to prepare for or declare independence. Of course, the Constitutional Court
has not been the only factor in this transformation, as the discussion on some of the procedures (essentially
the consultation) raises signicant differences in the citizen and political support as regards the discussion
on independence. However, the central actions of the Court as well as the need to develop a legal defence in
the corresponding proceedings have been aspects that have contributed to the same shift.
1.6.2 The illegalisation of the Catalan sovereignty process
Once the legal framework for the Catalan sovereignty process was established, the options for its development
were essentially reduced to two: the channelling of a movement putting pressure on state institutions, accepting
these institutions’ exclusive capacity for making the relevant decisions; or the alternative, to move into illegality,
illegal not for the objective but for the use of instruments that run counter to the legal system, given that the
Constitutional Court had closed off the route for unilateral development presented as respectful towards the
current legal framework. Once again, other factors have played an important part in this area, particularly the
onward march of time, which has forced the Catalan sovereignty process to dene itself through actions aimed
at achieving goals outside the political and institutional debate. However, the steps taken by the Constitutional
Court have progressively edged the process into a corner where it has just two choices: to be reduced to a mere
‘political aspiration’ subject to national majorities, or to oppose the law. The choice of the latter option by the
Catalan Government institutions entails major consequences for the process, as shall be looked at next.
1.6.3 The difculty of achieving the goals set
The decisions taken by the Constitutional Court have to a large extent curbed the achievement of the specic
goals marked on the Catalan sovereignty process’s various road maps.79 In addition to the suspensions and
prohibitions, there have also been more indeterminate obstacles, such as the warnings issued by the Court and the
various criminal proceedings brought for disobedience towards its rulings. Altogether these actions have not only
prevented the acts challenged from being adopted or producing effects, they have also been a relevant factor at
very least in the decisions not to take further actions with more powerful legal effects,80 which would have ended
up the same way, further aggravating the effects of criminal prosecution that shall be referred to shortly.
The development of the Catalan sovereignty process outside of the law has deprived it, rstly, of one of the
main sources of its impetus via autonomous community institutions: the capacity to adopt binding decisions
based on the majority decisions of these institutions. Secondly, it has made it harder to use public resources –
78 See in particular the response in Satrústegui Gil-delgado, M., ‘Encuesta sobre la cuestión catalana’, in Teoría y Realidad
Constitucional, no. 37, p. 77ff.
79 Essentially formalised in Resolutions 1/XI, of 9 November 2015, on the start of the Catalan sovereignty process, and 306/XI,
of 6 October 2016, on the general political orientation of the Government of Catalonia, objects of Constitutional Court Judgment
259/2015 and Constitutional Court Order 24/2017, respectively.
80 None of the legislative initiatives cited in the resolutions was approved and, in most of the cases, processing of them did not even begin.
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both material resources and in particular human resources – to boost the process, without giving rise to new
challenges and suspensions.
It is true that the Catalan sovereignty process has managed to develop, basically through parliamentary
resolutions, even when these have been the subject of subsequent challenges or have been issued against
explicit prohibitions by the Constitutional Court. In this regard, the Constitutional Court’s interventions
have not managed to prevent the manifestations of the Catalan sovereignty process in which the Court has
– debatably – recognised legal effects. The increase in the pressure stemming from pronouncements made
with the orders of execution and the subsequent criminal proceedings are, however, not the Constitutional
Court’s last resorts; now under the Organic Law on the Constitutional Court, it can use nes, the suspensions
of ofcials, or substitute enforcement. But the containment of the Catalan sovereignty process within its
framework of parliamentary development, without generating binding effects for citizens, is in itself a
relevant objective, one the Court has managed to achieve using its traditional methods, without having to run
the risk or accept the consequences of taking harsher measures.
1.6.4 Lack of formalisation and reduction of the public debate
The control enforced by the Constitutional Court has led Catalan Government institutions to turn to special
forms of action, aiming to avoid or reduce the impact of the Court’s decisions, particularly its suspension
rulings. This modication of the standard procedures and contents in the corresponding institutional actions
has materialised in various forms, which can be categorised as follows:
- De facto actions, avoiding judicial formalisation: the clearest example being the actions developed
in relation to the participative process of 9 November 2014. However, Constitutional Court
Judgment 138/2015 had little trouble forming an opinion on these actions, the Court recalling its own
jurisprudence on the possibility of challenging de facto proceedings and on all actions being subject to
the constitutional framework, regardless of their format. The expressions of a purely political nature
without legal effects (so far at least) that have been made in recent months81 are a separate matter,
capable of delaying the Court’s interventions, but without any possibility of having legal effectiveness.
- The elimination of the initial and intermediate public stages in the proceedings, thus preventing them
from being challenged before the adoption of the corresponding nal act, has been another example
of this strategy. In fact, the 2014 Law on non-referendum popular consultations already signalled this
trend, dening the procedure to call the consultation by way of just one act, the decree by which the
President could call the consultation without prior parliamentary discussion. More recently, the secret
drafting of the ‘Law of Transition’, or the reform of parliamentary regulations enabling the passing of
legislation through a fast-track single vote procedure are further examples of this pattern.
- The adoption of actions of an open or indenite character that provide grounds for the adoption of actions
in the framework of the Catalan sovereignty process as well as others compatible with the constitutional
framework. This essentially applies to legislation providing for the procurement of material resources (in
some cases annulled by the Constitutional Court), until what may be referred to as unconstitutionality ‘by
suspicion’ started appearing in the Court’s rulings and in proceedings that are still pending.
- Lastly it is also worth highlighting the shift to identify the initial proposal with a wider range of institutions,
as a way of making it harder both to challenge the proposal and to attribute responsibility. The attempt to
form joint presentations for the creation of legislative bills for a tax agency, social security and the legal
system – leading to Constitutional Court Judgment 224/2016 – is the clearest example of this type of action.
However, all of these strategies entail an increasing lack of public exposure and pluralism in the actions they
seek to protect, which of course results in negative effects as regards the legitimacy – in more than just a
judicial sense – of the acts adopted.
81 For example, the act of commitment to the Catalan sovereignty process signed by leading gures in the Catalan Government on
21 April 2017, or the political announcement calling a referendum for 1 October 2017, made by the President and Vice President of
the Government of Catalonia on 9 June 2017.
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1.6.5 Open confrontation with the law, the Constitutional Court and the ordinary courts: disobedience
The latest stage in the development of the Catalan sovereignty process is a clear illustration of the confrontation with
the constitutional framework dened by the Constitutional Court. But the confrontation is expressed most clearly
in Resolution 1/XI and Constitutional Court Judgment 259/2015, as well as the subsequent actions examined by
the Court. This route taken, one of open and denite eschewal of constitutional legality, opens the possibility of
a de facto, legally unsupported route towards the constitution of a new state or, otherwise, progression with the
criminal process initiated on the basis of the actions relating to the consultation of 9 November 2014. From an
institutional point of view, questions arise regarding the potential use of the powers provided by the reform of the
Organic Law on the Constitutional Court to ensure compliance with the Court’s rulings (essentially the suspension
of ofcials and substitute enforcement), or the ever-present possibility of recourse to article 155 of the Spanish
Constitution, despite the Spanish Government’s choice to avoid this option so far, the use of the Constitutional
Court being its preferred solution. However, with the unconstitutionality of the Catalan Government’s actions
clearly established (judicially, not politically) and its disposition towards open confrontation with the constitutional
(again, in a judicial sense) framework, recourse to article 155 of the Spanish Constitution undoubtedly becomes
an option that could be taken more easily, with responsibility shared between the Court, the Government and the
Senate. The judicialisation of the conict would also be evident in this patently political move, with the previous
intervention by the Court giving a nal judicial and depoliticising effect.
2 The Constitutional Court faced with the Catalan sovereignty process
The capacity assumed by the Constitutional Court in relation to the development of the Catalan sovereignty
process has had notable effects on its own institutional position, its role wholly transformed by the new
functions it has taken on. This transformation has stemmed from evolutions in the actions of Catalan
Government institutions and equally from the Court’s own acceptance of its new functions, enshrined in the
reform to the Organic Law on the Constitutional Court. As such it was very much a conscious decision, one
that has been the subject of purposeful discussion in each of the processes that have shaped its path and has
brought up controversial questions regarding its very existence, the way it was executed and what exactly
was being brought into law. The following sections examine the fundamental aspects of this transformation
of the Court’s position, functions and instruments (section 2.1) and offer an initial evaluation of the effects of
the central role the Court has played in relation to the Catalan sovereignty process (section 2.2).
2.1 The evolution of the Constitutional Court’s position, functions and instruments
The Constitutional Court’s jurisprudence, as touched upon in the rst part of this study, has evolved in a way that
can be summarised as moving from its traditional function of dening the constitutional framework to a new
function of ensuring respect and compliance, new at least in the intensity with which it is pursued and new in some
of the ways it materialises. In these functions there has also been an evolution from a certain degree of self-restraint
and referral to the political debate (section 2.1.1) towards an increasing judicial delimitation of the framework
and the resulting restrictions on institutional actions (section 2.1.2); also from an emphasis on preventing non-
compliance (section 2.1.3) towards the adoption of executive measures to correct them (section 2.1.4).
2.1.1 Denition of the constitutional framework: the Constitutional Court’s self-restraint, referral to
the political debate and indications for the future
The Constitutional Court’s jurisprudence on the Catalan sovereignty process begins in accordance with its
traditional role as the institution that interprets the Spanish Constitution and, therefore, the appropriate legal
framework. In this regard, Constitutional Court Judgment 42/2014 contained a series of decisions specifying
the constitutional framework surrounding concepts relating to sovereignty, constitutional pluralism and the
potential for constitutional reform, constructed in relation to the Parliament of Catalonia’s Resolution 5/X,
of 23 January, which does not directly question the validity of this framework.
In addition, the Court adopted a moderate position as regards its intervention in the core of the matter. The
Catalan sovereignty process’s origins as a political debate, subject to the constitutional framework, gave the
Court its licence to take this course, emphasising the need for dialogue and negotiation between the State and
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autonomous community political institutions and underlining the position of the Constitution (and the Court
itself) in favour of political pluralism and the resulting integration of the reforming positions.82
However, as already noted, this foundational position includes two elements that would be key to the future
development of the Court’s decisions, elements made clear from the outset as a precautionary guarantee of
its own control:
- First there was the admittance of the challenge, rejecting the very reasonable possibility of considering
that the resolution did not contain anything worthy of jurisdictional control. This decision would tie
the Court into its subsequent role as the institution responsible for global control over the Catalan
sovereignty process. It also determined the requirement for the Catalan sovereignty process to be
subject to the law, regardless of whatever institutional form of expression it could take.
- And second, the Constitutional Court determined the essential elements in the constitutional framework
to which the legitimacy of the Catalan Government’s actions would be subject: reserving the nal
decision to constitutional reform and ensuring this protection through a reform to its organic law. As
such, despite accepting the possibility of developing the ‘right to decide’, the Court does not see it as
an actual ‘right’ but rather a political aspiration, and not a ‘decision’ as might initially be understood
but instead a preparation for a decision by the institutions holding the power of constitutional reform.
And this Judgment also saw the start to a feature that has continued to date in almost all of the rulings made:
the unanimity of the judges. This has been highly signicant for the Court itself, and having been achieved it
would go on to hugely reinforce the effectiveness of the arguments to which it has given grounds.83
2.1.2 Denition of the constitutional framework: judicialisation and the restrictions on autonomous
community actions
The two elements referred to in the section title were immediately reinforced in the subsequent rulings,
which, addressing the possibility of an autonomous community consultation, completed the denition of
the framework for exercising the ‘right to decide’. The changes to the type of legislation being challenged
(changes to legislation made immediately effective) and to the context for the decision-making (the route
favouring negotiation suggested in Constitutional Court Judgment 42/2014 having been ruled out) created a
position for the Constitutional Court that was much more focused on its role as prescriber of the Constitution
and the restrictive consequences for actions that opposed it.
In this regard, the Court strengthens its use of the arguments contained in judgments from before the start of
its intervention in the Catalan sovereignty process, in a way making Constitutional Court Judgment 42/2014
something of a parenthesis in the development of the conict, of lesser relevance to the subsequent rulings.
It is well worth emphasising the relevance given to some statements that, when made, were not part of the
ratio decidendi giving grounds to those original judgments, and which therefore were not the subject of any
special discussion in the arguments from each side, and were not included in the grounds used by the Court.
However, these statements would subsequently become precedents that were almost indisputable and, somewhat
incontrovertibly, would end up marking the direction of new judgments. For the Constitutional Court this is one
of its classic forms of argumentation, but it must be noted that it held little conviction or effectiveness in the
82 As highlighted by Arbós Marín, X., ‘El Tribunal Constitucional como facilitador’, p. 41ff., and criticised by Fossas, E.,
‘Interpretar la política’, p. 295ff. and p. 300, and by Tajadura, J., ‘La STC 42/2014…’, p. 72ff.
83 This unanimity, which is not exactly typical in the Constitutional Court in recent years, has only been absent in two of the
rulings made: Constitutional Court Judgment 228/2016 on the Law on Foreign Actions, a relatively minor matter that was essentially
external to the Catalan sovereignty process; and Constitutional Court Judgments 185/2016, of 3 November, and 215/2016, of 15
December, on the reform of the Organic Law on the Constitutional Court that introduced new measures to ensure compliance with,
and the execution of, its judgments, a matter that was also formally separate from the Catalan sovereignty process but in this case
materially linked and even of central relevance. However, it is worth noting that the dissenting opinions only questioned some of
the execution measures, in essence calling for them to be used sparingly and as a protection, and that the second judgment reduced
the intensity and size of the split in the Court. In any case, and without having turned to use of the more provocative means, the
Constitutional Court’s rulings in favour of personalised warnings have also been made unanimously.
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political debate to which it applied,84 an aspect that shall be revisited and which represents, in my opinion, one
of the Court’s most signicant failings in its intervention in the Catalan sovereignty process.
The Constitutional Court continued with its key function of dening the framework, at this point focusing
on the denition of what constitutes a referendum, and on it being the preserve of the State and organic law
to establish types of referendum and their basic regulation. However, it also used its judgments to signal two
elements that introduce an essentially preventive purpose, inclined to prevent future actions:
- Firstly there is the Judgment of 10 May 2017, on the 2010 Law on consultations, which can be seen as clos-
ing off the possibility of a consultation not provided for by the organic law but agreed with the State under
its authorisation. Although this is an effect that is undoubtedly inherent to the appeal ruling, the argument
is justied by the fact that the judgment was handed down without any pressure in terms of its timing, after
seven years of waiting, and when the matter was the object of a certain amount of political debate.
- And secondly, much more relevant to the development of the conict, there is the use of the suspension in the
aforementioned judgment as an element of central importance and, above all, as an element open to future
denitions different from the content of the initial challenge, a matter that has been brought up repeatedly.
2.1.3 The function of ensuring the established framework through the prevention of new contrary actions
The prevention of unconstitutional actions is quite clearly a function pertaining to the Constitutional Court,
and this is immediately evident in both its annulments and its precautionary suspensions. However, in the
series of Constitutional Court rulings on the development of the Catalan sovereignty process, this preventive
function manifests very particular and distinct characteristics. Very often it is not so much a consequence of
the constitutional process (‘declaratory’) but rather its main purpose, other times it is projected onto future
actions (in an essentially ‘preventive’ manner), it uses personalised communications with a tone of clear
censure that draw it towards the coercive instruments of execution, and lastly it takes on new justications
for its application. Each of these areas is briey examined below:
- Suspension becomes the basic decision in proceedings when there is no discussion on the background
or when dealing with one-off legislation or actions. In these cases the nature of the automatic
suspension has a double effect worth commenting on: rstly the obvious and well-known weakness
of the autonomous community actions, but secondly, the nonexistence of any reasoning behind the
decision, making it particularly decient in the political debate developing at that moment in time.
Automatic suspension is thus an instrument that is very effective from a judicial point of view, but at
the same time very limited as regards the parallel political debate, without the later judgment (normally
a foregone conclusion) doing much to change this. Some specic statements from the Constitutional
Court in relation to the Catalan sovereignty process have worsened this situation, greatly reducing the
possibilities for dialogue and explanations from the Court.85
84 It may be useful to provide some relevant examples: of course, no special argumentation is needed regarding the constitutional
demand that the State authorise referendums, based on the provisions in article 149.1.32 of the Spanish Constitution. However,
simply stating this and leaving it at that, which is what the Court does in its Judgment 31/2015, is not of great usefulness in political
terms, and creates an impression of the Constitution as simply legislation that imposes limits, without explaining the purpose and
signicance of said limits. The political debate is thus dominated by the idea of the referendum being prohibited in order to prevent
the expression of desires for independence, without any discussion of other issues such as the legitimacy of the institutional effects
of a partial referendum on a decision that corresponds to a larger institution, the functionality of referendums in the context of
discussions that do not have a clear social majority, or the effect of depleting any negotiation room. In addition, an explanation of
the signicance of article 149.1.32 of the Spanish Constitution would have enabled examinations of whether, under the strict terms
used, other functions and purposes were the preserve of organic law as regards provisions for autonomous community referendums
(Constitutional Court Judgment of 10 May 2017) or if authorisation being the preserve of the State was sufcient to cover the
interests in need of protection. The educational and explanatory function the Court has on other occasions made efforts to full was,
in my opinion, excessively absent from at least the initial rulings on the Catalan sovereignty process, rulings that tended too much
towards literal or systematic interpretations, judicially sufcient but very weak when stood alone in the public debate, one which is
essentially a nalistic debate.
85 This has been the case with the refusal to clarify measures (Constitutional Court Order 292/2014), especially in the context of
suspensions with effects that are not limited to specic actions (even though this might entail a possibility of evading or delaying the effects
of the ruling), or the refusal to examine the misuse of suspension requests (ibid) or, on a more nuanced level, the unyielding insistence on
the nonexistence of an admission process in the unconstitutionality appeal (Constitutional Court Judgment 42/2014, for example).
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- The preventive nature of the suspensions is linked in particular to their indeterminate effects, meaning the
idea is not so much to suspend specic actions as it is to prevent a certain result being achieved (the true
goal of the suspension), whether this is by means of one set of actions or another. This characteristic has
become widespread across a large share of the challenges to the Catalan sovereignty process, with the
Constitutional Court ending up seeing it as all part of the same course of action, edging towards a unilateral
assumption of sovereignty and a declaration of independence. The court has thus turned to preventive
suspensions for everything of this ilk, followed by annulments via the corresponding orders of execution.
- Suspensions have been accompanied with increasing frequency by personalised communications to
those responsible for compliance with them.86 This is an element with two implications: rstly there
is the stern warning over subsequent adoption of execution (or even criminal) measures, something
analysed in the next section; and secondly it serves as an effective instrument to steer the conduct of the
people in charge to whom the communications are addressed, an aspect that increases its effectiveness
in the prevention of non-compliance.
- Lastly, the Court introduced a special justication for use of its suspensions, besides the traditional
justication of considering the effects: this is particularly relevant to the conict, as it removes the
obligation to enter into specic evaluations of the effects of the resolutions challenged,87 thus closing
the net on the actions of the Catalan sovereignty process that come up against the Court.
However, suspensions are not the only preventive measure within the Constitutional Court’s jurisprudence on
the Catalan sovereignty process. Attention must also be given to the development of preventive or ‘by suspicion’
unconstitutionality. This refers to cases whereby a measure, although in itself constitutional, is declared
unconstitutional to prevent it from giving rise to other future developments or actions that are unconstitutional. The
Constitutional Court has repeatedly rejected this construction, demanding that the condition of unconstitutionality
relate to the act itself and not its potential consequences. Nevertheless, the Court has at the same time started
frequently referring to ‘interference’ with extraneous competences or the mere perception of ownership of
extraneous competences, extending the attribution of unconstitutionality and bringing it very close to preventive
or suspected unconstitutionality, given that ‘interference’ and ‘perception’ are intrinsically subjective notions.
2.1.4 The guaranteeing of the rulings handed down: compliance and execution
Recent proceedings show an increasing focus on ensuring compliance with previous rulings handed down by
the Constitutional Court, a focus that culminated in rulings for orders of execution in 2016 and 2017. The Court
thus takes on exclusive responsibility for seeking compliance with its rulings, addressing actions that are not
judged for their own direct constitutionality, but for the extent to which they oppose the ruling that is executed.
To date, the Court has fullled this role without making use of all the instruments specically provided by
the 2015 reform to the Organic Law on the Constitutional Court, following its controversial introduction
and declaration of constitutionality. At the same time, important questions have arisen regarding the scope
of application for the orders of execution (a), the position of those who are obliged to comply (b), the
proceedings (c), and the possible content of the rulings (d).
a) Scope of application for the orders of execution
An order of execution can be issued in the event of pronouncements that oppose one of the Constitutional
Court’s rulings or attempt to undermine its (judicial or material) effectiveness. Constitutional Court Orders
141/2016 and 24/2017 show that denition of these scenarios is not easy when they do not arise from explicit
86 Seen for the rst time in the communication of the declaration of admissibility and suspension (11 November 2015) of Resolution
1/XI, as described in the background facts (no. 3) in Constitutional Court Judgment 259/2015. Afterwards this provision was used
more widely and those affected grew in number to the point highlighted previously regarding the unconstitutionality appeal against
Law 4/2017, on Budgets, published in the Government of Catalonia’s Ofcial Journal, 12 April 2017.
87 Constitutional Court Orders 156/2013, 182/2015 and 186/2015, which could raise questions about parliamentary resolutions with
effects supposedly interfering with state competences. While the Constitutional Court has not assumed this criterion for determining
the challengeability of actions (and has formally considered their ‘legal effects’), it has ended up doing so for decisions regarding
the lifting of suspensions.
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references to the acts addressed in the judgment being executed. In these cases the Court establishes the
executive character of its rulings (allowing a much faster and stricter control procedure) through reference to
the same purpose pursued by the ruling addressed in the judgment presently executed.88 However, taking this
reference to a formal act that was addressed in a previous judgment and transforming it into the new contents
and objective can be difcult, especially when there are doubts over what the object of unconstitutionality
was in the rst ruling (the purpose or content of the corresponding action).
Meanwhile, the suitability of parliamentary resolutions as objects of jurisdictional pronouncements is
conrmed, specifying in each case which elements are the cause of the resolution’s legal effects.
b) Duties to comply
In particular, these proceedings have raised the issue of the duties to comply and to prevent non-compliance
that are incumbent upon civil servants and public authorities. The Constitutional Court has been especially
emphatic in its refusal to countenance non-compliance with the duties arising from the authorities’ judicial
position, particularly in the case of the President of the Parliament of Catalonia, asserting that the obligations
stemming from parliamentary regulations cannot provide an exemption from the obligation to comply and to
provide guarantees, under any circumstances, as all legislation must be interpreted in such a way as to favour
and conform to the effectiveness of the Constitution and, ergo, the Constitutional Court’s judgments.89
c) The proceedings
The chief characteristic of the orders of execution is the speed with which they can be processed, thus the
rulings for the orders discussed were made in little over ve months (Constitutional Court Order 141/2016),
two months (Constitutional Court Order 170/2016) and four months (Constitutional Court Order 24/2017).
In any case, the orders of execution entail the automatic suspensions of the challenged actions,90 and any
request for execution measures consisting of personalised warnings of the potential use of the measures
described in article 92 of the Organic Law on the Constitutional Court or of the transfer of proceedings to the
Public Prosecutor requires a hearing with the persons affected.
d) The content of the rulings
The Constitutional Court has made it its normal practice to provide full details of the contents of order of
execution rulings, beyond their approval or rejection. The pleas included in the document presenting the
order of execution are simply proposals91 that the Court can accept or dismiss. The Court can also go beyond
these ‘proposals’, although in this case it would be reasonable to demand that the parties affected be given
prior notication so as to be able to provide whatever arguments they deem appropriate.
88 For example the ‘constituent process’ identied with the attempt to ascribe sovereign attributes to the parliament or people of
Catalonia (Constitutional Court Order 141/2016, legal grounds no. 4) based on the areas studied by the Commission and the sequencing
of the Parliament’s actions (legal grounds no. 6) or of the specic actions planned (Constitutional Court Order 24/2017, legal grounds
no. 7). It is doubtful whether the Court would be prepared to extend its application of this construction to areas of less ‘exceptional
relevance’, for example in relation to competences, repeating its jurisprudence in relation to subsidies for specic sectors.
89 This duty is made clear in Constitutional Court Orders 141/2016 and 170/2016, atly dismissing the possibility of any justications for
non-compliance with the Court’s rulings. The strength of this dismissal is probably justied in the cases studied, but there may be more nuanced
cases in the event of new impacts on the constitution that have not been considered by the Court, where evaluation of the corresponding
authority is required (particularly in relation to parliamentary debate). Separately, mention has already been made of the different position of
civil servants, based on the arguments of the Secretary General of the Parliament in Constitutional Court Order 170/2016 (see footnote no. 52).
90 This was not included in the proceedings of Constitutional Court Order 141/2016, but was included in Constitutional Court
Orders 170/2016 (background fact no. 6) and 24/2017 (background fact no. 8).
91 This is expressed in Constitutional Court Order 141/2016: ‘…it is therefore (…) inexcusable for the Court, for which the pleas
from each side in relation to this point are taken as proposals (article 92.3 of the Organic Law on the Constitutional Court), to exercise
its full authority to determine the scope of approving an order of execution of this nature’ (legal grounds no. 7). The Court does not
even examine (and naturally does not take up) any of the measures proposed in Constitutional Court Orders 170/2016 and 24/2017,
namely the warning of a potential adoption of nes and suspensions of ofcials provided for in article 94.2 a) and b) of the Organic
Law on the Constitutional Court (background fact no. 5 of the Constitutional Court Order 170/2016 and background fact no. 7 of the
Constitutional Court Order 24/2017) and the order not to convene the parliamentary bodies in certain cases (background fact no. 14
of Constitutional Court Order 24/2017).
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The Constitutional Court has made it its normal practice to give consideration to the following possibilities
in order to form its ruling:
- Approval or rejection of the order, depending on whether it is clear there are obstacles and a need
to remove them or avoid them in the future. Just the declaration of approval generates effects that
increase compliance, even without any annulment of the challenged action, and it enables the issuing
of the personalised warning of the duty to comply.92
- The action can be annulled by the Court or can remain in place, being interpreted in a certain way, i.e.
if it is considered open to interpretation in conformity with the ruling being executed, even though the
order is approved (Constitutional Court Order 141/2016).
- In all of the cases so far the Court has included a personalised warning on the duty of compliance (specifying
in Constitutional Court Orders 170/2016 and 24/2017 both the obligation not to take certain actions and
the obligation to prevent the actions of third parties), a feature of particular relevance as a preliminary step
indicating the potential recipient of future execution measures or of demands for criminal responsibility.
- Lastly, the Court has decided to transfer proceedings to the Public Prosecutor in the cases of some of
the responsible parties, for the purpose of potential future criminal responsibility.93
To date the Court has not taken into consideration the proposals from the State Attorney and the Public
Prosecutor to give warnings specically on the possibility of adopting the measures provided for by article 92
of the Organic Law on the Constitutional Court (ne or suspension of ofcials), and has not even expressed
any opinion on going to this length so as to conrm the full availability of measures the Court has.
2.2 The central role played by the Constitutional Court in relation to the Catalan sovereignty
process: an assessment
The central role the Court has played in relation to the Catalan sovereignty process and the transformations
analysed in the previous section have affected aspects traditionally of importance as regards how the
Court is perceived (section 2.2.1). These negative impacts the Court has endured must be viewed in the
light of its contribution in the conict with the Catalan Government institutions, a contribution that has
been consciously advanced above those of other potential lead gures. As such, the Constitutional Court’s
contribution is analysed (section 2.2.2) basically in relation to these other potential gures, essentially
the Spanish Government and Parliament. And lastly, these aspects provided by the Court have entailed an
absence of certain other elements, due to the Court’s decisions or as an inevitable result of its very nature,
something that has also shaped the development of the Catalan sovereignty process (section 2.2.3).
2.2.1 Negative impacts on the Constitutional Court
As analysed in the previous section, the Constitutional Court has adopted changes to its position and approach,
changes that may have a negative impact on its traditional role and position as a means for the resolution
of conicts through judicial interpretation (i.e. impartial and grounded in the law) of the Constitution.94
Furthermore, the Constitutional Court, like any other public institution, essentially has its roots in the trust
and respect it receives from the public and other institutions; the effective exercise of its functions is only
possible if it has these things, at least in a global sense and in the long term.
92 As was the case with the ruling from Constitutional Court Order 140/2016 on the formation of the study commission on
the constituent process. The Court did not annul the creation, as the study commission was capable of operating constitutionally.
However, the Court did approve the order of execution and clearly established certain authorities’ duty of compliance and the
illegitimate nature of certain actions, without issuing a warning about the non-compliance.
93 Constitutional Court Order 170/2016 for the President of the Parliament of Catalonia and Constitutional Court Order 24/2017, again for
the same President and for the members of the Board of the Parliament of Catalonia who voted in favour of the non-compliant proceedings.
94 This is argued with particular strength in Urías, J., ‘Damaging the legitimacy of the Spanish Constitutional Court’, [blog post,
online] Verfassungsblog [accessed June 2017], and ‘The Spanish Constitutional Court on the Path of Self-Destruction’, [blog post,
online] Verfassungsblog [accessed June 2017], which advance some of the points made further on in this section.
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The Constitutional Court has spent three years addressing challenges to the actions initiated by Catalan
Government institutions in the framework of the Catalan sovereignty process. Over the course of these three
years its position has deviated from dening a disputed constitutional framework to providing a guarantee and
the execution of said framework. Almost all of the rulings it has handed down have been in favour of the state
plaintiffs and against the actions of the autonomous community. As the Court itself has expressed, this has
essentially been due to the fact that the object of the judgments has mostly been one and the same, the Catalan
sovereignty process, manifested in various forms in each case. However, in the eyes of the general public, the
Court’s semblance of impartiality may be affected by this situation, whether this is justied or not. And this is
particularly true with those who, to a greater or lesser degree, agree with Catalan sovereignty arguments.
This risk – which it is hoped can be described objectively and in separation from any evaluation of alternative
courses of action – is heightened by a series of aspects that have coincided with the Court’s actions:
- The Court has fully taken on the role of guaranteeing and executing its own rulings. This has not stemmed
from the reform of the Organic Law on the Constitutional Court (which could have driven the Court) so
much as from its own decisions and in virtue of its own perception of its role. And in executing its rulings,
the Court no longer looks like an institution that is removed from the conict; instead it seems to be involved
in the conict, face to face with the parties affected by the execution. What is more, the nature of the orders
of execution (speed, more restrictive parameters, contexts of conict) have the same effect, as signalled by
the Venice Commission in its appraisal of the reform of the Organic Law on the Constitutional Court.
- It cannot be ignored that this situation comes on top of a general crisis of condence in Spanish public
institutions, something that is particular to the Constitutional Court due to criticisms of politicisation,
and is specic to Catalonia because of the long and problematic handling of its Statute of Autonomy
by the Court in recent years, as well as the nal judgment and the subsequent reaction.
- The increasing frequency and signicance of the suspension and execution rulings – with less reasoning
provided than in the unconstitutionality judgments – represents a growing difculty the Constitutional
Court has in giving explanations to the public. In contrast, the Court is also faced with (the majority
positions of) political institutions with a constant presence in the public debate, and has not always had
a fair amount of fortune with the arguments it has provided for its rulings.
- Also, the need for fast rulings and their integration in the Catalan sovereignty process means the
distance in time and the political separation between the Court and the matters it is ruling upon is lost.
This is an aspect that can always be traced to the suspensions and executions, and in relation to the
Catalan sovereignty process very often stems from the unconstitutionality proceedings.
The signicant loss in the public’s trust in the Constitutional Court as a result of all this seems hard to ignore, in
Catalonia at least, and if it occurs for long enough and to a sufcient degree, it may be very difcult to restore.
And trust in the Constitutional Court and trust in the Constitution are very closely linked, if not one and the same.
As well as this fundamental effect that goes beyond the legal sphere (but affects it deeply), two other effects
can be added in connection with the Court’s functions:
- By taking on preventive and – more signicantly – executive functions, the Constitutional Court became
for the rst time a court of rst instance (and often ‘only instance’) for decisions that have impinged
on the rights of the people affected (in particular the authorities responsible for the compliance) and
on the signicant elements of pluralism and political debate, as the practice developed demonstrates.
This transformation, while problematic in itself, is also brought about without any clear framework
of guarantees and defence being specied, through hasty and ill-dened proceedings (the suspensions
and orders of execution), and by a Constitutional Court that is traditionally not involved in elements
such as hearings, evidence or the requirement of direct contact between each side and the judges. The
resultant weakening of the Court’s position may sometimes be disproportionate, especially if it comes
into play with the indirect but hard to avoid effects of subsequent criminal proceedings.
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- The conict has very often been presented as a conict between law and democracy, or one could
say between the rule of law and democratic principles,95 or between legal reasoning and political
discussion. In spite of the efforts the Court could have made and the impossibility of separating the two
principles – clear to anyone practising law, a public perception of the law and the Constitution acting
as an arbitrary means of curbing the people’s will has taken some hold, undermining the position of,
and respect for, the Constitution, the Court and its decisions.
2.2.2 The Constitutional Court’s contributions to the conict
The Constitutional Court has of course contributed to the conict with its conception of the constitutional
framework, as detailed previously in this study. But a question that begs answering is, beyond this legal
denition, what factors justify the Court’s leading role in the conict, countering or compensating as far as
possible for the negative effects suffered?
In this respect, three main elements can be identied that stem from giving the Court the central role it has taken:
- Firstly, its effectiveness in curbing the actions of Catalan sovereignty. So far, the Court’s rulings have
managed to prevent the Catalan Government from adopting binding decisions, and any remaining non-
compliance with its rulings relates essentially to parliamentary actions without any effect beyond the
political debate. Whether this success will continue in the future or whether there will be instances of
non-compliance with greater consequences – possibly requiring the use of unprecedented instruments
by the Court or by other gures – remains to be seen.
- Secondly, the unanimity in the Court’s interventions, something that has reinforced unity among the actions
of most of the state’s political forces. The Court has been particularly careful to gain unanimity in its
decisions on this matter, but moreover it has been a shared gure of importance for most of the political
parties in the Congress, cutting the probability of discrepancies appearing in relation to the actions taken or
led by the Government (and in relation to taking responsibility for actions or failing to do so).
- And thirdly – and essentially, the Court’s intervention has prevented the conict from escalating to
a direct clash between state and autonomous community institutions, between executive branches of
government. The Court has converted what was famously referred to as a ‘head on train collision’ into a
more prolonged and less virulent process of constant undercutting, thus avoiding the use of instruments
that remain unprecedented in Spain’s system, such as recourse to article 155 of the Spanish Constitution.
As such, for every time the Court’s interventions negatively affect its own legitimacy or are seen to be
lacking in political effectiveness, there is at least the upside that an open conict between governments is
avoided, a fundamental purpose of constitutional law in relation to territorial conicts.
2.2.3 The Constitutional Court’s failings in the conict
Alongside the aforementioned contributions, the lead taken almost exclusively by the Constitutional Court has
also entailed shortcomings, as already mentioned over the course of this study, deciencies of which the Court
itself is aware, as seen in its initial (though largely unsuccessful) attempt to vacate centre stage. These relate to
drawbacks inherent in the nature of any Constitutional Court, but there are also failings that are specic to this
Court in particular. None of these failings is necessarily attributable exclusively to the Court (although it could
be accused of showing enthusiasm even despite these failings). Instead the nger could be pointed at the other
institutions who could have contributed, which are essentially the same institutions that have appointed this
specic Constitutional Court for the years 2013 to 2017, charged with resolving the conicts that have arisen:
- Firstly, the Constitutional Court has focused primarily on debates regarding proceedings, leaving aside
any debate on contents. This is probably because its scope for intervention is greater in the former than
in the latter (the discussion on the possibility of a consultation allows for more legal solutions than
the discussion on sovereignty), but also because this is the basic terrain for judicial debate. However,
95 The Constitutional Court gives a signicant amount of attention to this question in Constitutional Court Order 170/2016 (legal
grounds no. 6, in what is an order of execution). However, in my opinion it would be of greater use if their efforts were spent on
explaining the bases and purposes of the constitutional precepts discussed in the declaratory judgments.
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this has meant eschewal of a debate on contents, essentially a political debate, which could have found
more grounds for agreement than the discussion on the proceedings for exercising the ‘right to decide’.
- A judicial procedure is not a negotiation, and the Constitutional Court can only offer procedures and
a framework to encourage negotiation. Leaving aside the matter of whether the framework dened
could have better incentivised such negotiation, what is certain is that the institutions responsible for
this function (governments and parliaments) failed to deliver, and the conict, inserted into the judicial
arena, took its course as any trial must: with winners and losers.
- The creation of winners and losers, regardless of whatever constitutional correctness it might have,
entails a considerable deciency as regards the integration of the losers in the system. If there are
few losers or they renounce their positions, the system is strengthened, but if there are many and they
stick to their positions, the system is weakened. The Constitutional Court as an institution and this
Constitutional Court in particular (in election, workings and expression) is not sufciently capable of
the integration needed to counteract the resulting feelings of exclusion from the system.
3 Postscript: the conict’s ‘collateral victims’
Examination of the Constitutional Court’s jurisprudence shows how the series of judgments handed down
in relation to the Catalan sovereignty process have an impact on a very wide range of areas. As a result, the
constitutional framework for these areas is affected by the rulings, which are essentially aimed at restricting
autonomous community and parliamentary actions. A full analysis of these wider impacts is beyond the
scope of this article, but it is worthwhile at least outlining the main aspects.
3.1 Parliamentary debate
The rulings studied have a multitude of effects on the parliamentary arena and, as a result, on the potential
for public and politically plural debate in our system. At least three elements are reformulated in the light of
this new jurisprudence.
- The scope of judicial review over parliamentary activities has expanded hugely due to decisions such as
the admission of challenges to resolutions, decisions that are now considered to have legal effects and
which can also lead to suspensions and annulments via orders of execution. In this regard, the dividing
line between politics and law appears to have moved in favour of the latter, not just in terms of procedural
effects but also as regards the real possibilities for expression through parliamentary debate.
- Parliamentary authorities now have much stronger obligations and powers regarding the processing of
initiatives (not so much those that might be unconstitutional, but rather those that could run counter to
the Constitutional Court’s past rulings). The powers of ‘technical review’ and the (potentially criminal)
responsibility of Presidents and members of parliaments are currently much greater than they were
before the Constitutional Court rulings studied in this article were made.
- Although it has not been a direct object of attention for the Court, the scope and effects of parliamentary
inviolability take on new nuances and controversial questions arise in this context. This has already resulted
in the criminal proceedings against the President and members of the Board of the Parliament of Catalonia.96
96 Parliamentary inviolability does not make unconstitutional actions constitutional, but it does exempt them from sanction, particularly
criminal charges. The Constitutional Court did not analyse the role of parliamentary inviolability as regards the possible existence of non-
compliances or the potential use of orders of execution (deliberation could still be given to weighing the object of the protection of parliamentary
inviolability – i.e. free parliamentary and political debate – against compliance with the Court’s rulings), so the debate on whether parliamentary
inviolability provides exemption from criminal responsibility for actions carried out as part of parliamentary work remains open. The premises
of the discussion can be seen in Supreme Court Judgment 1117/2006, of 10 November (Atutxa case), which excluded the actions of the
President and the parliament from parliamentary inviolability, considering them actions of internal organisation, of a nature more technical than
political; also, taking an opposing standpoint, in the arguments of the Parliament of Catalonia’s attorney in the aforementioned Constitutional
Court Orders 170/2016 and 24/2017, published in the Ofcial Gazette of the Parliament of Catalonia no. 206, of 8 September 2016, and no.
305, of 19 January 2017, which discuss this distinction and chiey defend the need to apply parliamentary inviolability in these cases as a
necessary means to guarantee the interests protected by parliamentary inviolability: freedom of discussion and debate.
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The combination of these elements are a considerable restriction on the full freedom that is traditional in
parliamentary debates and expression, such that it must be assessed to what point the Court’s decisions in this area
are transferable, beyond the question of the Catalan sovereignty process deemed of such ‘exceptional relevance’.
3.2 Autonomous community competences
The Constitutional Court’s rulings have included some aspects that are new to Spain’s system of competences,
aspects that are essentially restrictive towards the autonomous communities.
- Firstly, there is of course the matter of autonomous community competences for popular consultations,
which have been conned to a very marginal role as regards both the type of consultation left outside
of state competence on referendums and the possibilities for autonomous community regulation or
actions in the framework of the Organic Law on Types of Referendum.
- Secondly, there has been the development of the notion of ‘interference with competences’, key in the
recognition of legal effects in certain acts and frequently used by the Court in the framework of the
Catalan sovereignty process.
- Also the limits of autonomous community competences have been subject to monitoring as regards
the administrative conguration of their human and material resources and the internal determination
of the functions (and even the names ) of their governmental bodies.
- And lastly, in relation to autonomous communities’ participation in constitutional reform procedures,
relating to both recognition of special effectiveness in their initiatives and determination of the limits
in potential actions for the preparation and promotion of any reform.
3.3 Direct democracy
Naturally enough, the referendum concept has been a central object of the Court’s attention. Arguments over
competence aside, this attention has focused on the following elements:
- The development and reinforcement of the condition whereby the establishment and regulation of
referendums is the preserve of the organic law, specically the Organic Law on Types of Referendum,
with a strict view of the possibilities directly open according to the Constitution.
- The explicit consideration of referendums as an extraordinary and exceptional event in Spain’s system
and the consequently broad interpretation of their limits.
- The limitation on (consultative) referendums as regards questions subject to constitutional regulation,
in virtue of respect for the constitutional reform procedure provided, part of a construction that despite
having been made in relation to autonomous community referendums, appears to apply to state
referendums also.
3.4 The Constitution’s integrating function (vs. its legislative function)
In its initial Judgment 42/2014, the Constitutional Court hoped to project the Constitution’s integrating qualities
and, as a result, its own actions. In the words of that Judgment, ‘the primacy of the Constitution, however, does
not mean that there is a positive duty to adhere thereto. In Spanish constitutional law, there is no room for a
“militant democracy” (…) Approaches that intend to change the very grounds of the Spanish constitutional
order are acceptable in law’. These assertions enable even those hoping to change the Constitution to feel
integrated within their system, and mean that in the dialogue put forward – ‘the public powers (…) are the ones
entrusted with resolving any matters arising in this eld, through dialogue and cooperation’ – compromises are
sought to allow the maximum number of citizens to be included in the system.
This initial situation ending up – for the time being at least – with continual orders of execution, open
confrontation between institutions, and proceedings for disobedience, thus emphasising the prescriptive
nature of the same constitutional law (citing Constitutional Court Order 24/2017, legal grounds no. 9, ‘the
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anti-judicial will to continue with the “constituent process in Catalonia” outside of the constitutional order’),
was perhaps inevitable, but in any case it lays bare the failure of the integrating capacity in this process; a
failure on the part of the Court and the Constitution itself to reintegrate a large number of the citizens in its
constitutional system.
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