The territorial model of the Spanish Constitution of 1978 has been called the ‘state of autonomies’. It is not a centralist state, but neither is it federalist. It is a hybrid between the two models, a model that is deliberately undefined in order to facilitate consensus during the constituent process, and which has elements of both models, so that the political and democratic game would tip the balance towards the territorial model that finally attracts sufficient democratic support. This is why, in the evolution of the Spanish autonomous State, the distribution of competences between the State and the Autonomous Communities is an issue of great political and legal relevance.

[…] we can better understand that feelings of attachment to the territory and territorial capacity must also be conceived as a sphere of decision making where power relations must be balanced and egalitarian. Power relations that make it possible to have tools for making political decisions in response to the needs of the territory, within a logic favourable to coexistence, in order to enable greater cohesion and living conditions among the people who live and work in the territory.

The historical nationalities and, in particular, the foral communities.

The Autonomous Communities that plebiscized their statutes of autonomy during the Second Spanish Republic are considered in the Spanish Constitution of 1978 as historical nationalities.

This denomination is used to recognise their historical, cultural and linguistic uniqueness, which distinguishes them from the rest of the Spanish territory.

Why do you call Galicia, Catalonia, the Autonomous Community of the Basque Country and the Autonomous Community of Navarre ‘historical nationalities’?

• Historical roots: These communities have a long history prior to the formation of the modern Spanish state, with their own institutions, languages and distinct cultures.
• National consciousness: They have developed a strong national consciousness of their own, with aspirations for self-government and, in some cases, even independence.
• Plebiscite: The holding of a plebiscite to approve their statutes of autonomy is a sign of the popular will to govern themselves.

The main differences

The main differences that the 1978 Constitution expressly recognises with respect to the common regime autonomous communities are the following:

• Degrees of self-government: Communities with special characteristics have, in general, a greater degree of self-government, with broader competences in various matters, such as their own civil law, co-official language, institutional organisation, ….. The asymmetry of powers is fully accepted in the Constitution, although the extent of this asymmetry is open to debate.
• The foral communities have their own unique financing system: the economic agreement.
• History and uniqueness: These Communities have a history and a cultural and linguistic uniqueness that is expressly recognised in the Constitution (DA 1ª, DT 4ª, unique financing system, co-official language…).
• Formation process: The process of formation of these communities was different, having started at an earlier historical moment and with a different legal basis.
• Reform process: the reform of the Statute of Autonomy cannot be imposed by the Spanish State and must be ratified in a referendum by the citizens.

Erosion of powers

In their first-generation Statutes of Autonomy, approved in 1979, these Autonomous Communities of a singular nature sought to give continuity to the will for self-government of the Republican era, which Francoism violently annulled. For this reason, they were endowed with a framework of powers that would guarantee them the broadest possible decision-making capacity. But this capacity for autonomous decision-making has been eroded.

What do we understand by the erosion of competences?

In the context of the Spanish autonomous state, we could define ‘erosion of competences’ as a political and legal process.

In this way, the central State expands its sphere of decision-making over its competences and, at the same time, the autonomous communities lose control over theirs. In other words, the autonomous communities have the capacity to decide less, and more decisions are taken by the central State administration, which have to be applied in a uniform and obligatory manner in the territory of the Autonomous Communities.

This loss of decision-making power can manifest itself in various ways:

• Incomplete transfer of powers: the State delays or fails to complete pending transfers of powers.
• The excessive extension and limiting nature of central State legislation: the central State, through its legislation (organic laws and basic regulations, not only those with the formal rank of law and approved by the Cortes Generales, but also regulations of regulatory rank) manages to limit the exercise of the competences attributed to the Autonomous Communities and to condition their legislative and management capacity in certain areas.
• Restrictive interpretation of autonomous powers: The courts, especially the Constitutional Court, interpret the scope of autonomous powers restrictively, reducing their scope of action.
• Centralising process: The central State assumes planning and management functions which, in a model of political decentralisation, correspond to the Autonomous Communities, thus limiting their autonomy.

Why is there an erosion of powers?

The Spanish Constitution of 1978 established a decentralised autonomous state model, recognising the national and cultural plurality of Spain. However, over the years there have been tensions and discussions about the distribution of powers between the state and the autonomous communities.

As for the foral communities, recognition of their uniqueness has been limited and has been subject to political and legal debate. The tension for uniformity has been permanently present and it has been very difficult to guarantee their own sphere of action in public policies. Thus, for example, in education, in the civil service or in local administration, the State has imposed its own model and has forced the autonomous communities to act and manage accordingly.

At the request of the EH BILDU parliamentary group, in 2017 the Basque Government presented a report analysing whether we had full capacity to act in any area, and the answer was categorical: ‘In no area does the BAC have freedom of action, in everything it is conditioned in one way or another by the policies of state or European institutions’.

Although the Spanish Constitution offers the possibility of developing a plurinational model of State, if the Constitution itself has been the basis for this, for the time being it has renounced the possibility of developing this path. In any case, this possibility is there, awaiting the creation of the appropriate political conditions.

Factors that have contributed to the erosion of powers and which should be corrected in the drafting of the new status:

• Lack of clarity in the distribution of powers: With the approval of the Spanish Constitution, an open, not totally closed, system of territorial power-sharing was established. This was a legal strategy to make the agreement of the time possible, but this has led to the rules for the distribution of competences not being sufficiently clear and precise.

This ambiguity has led to numerous interpretative conflicts. Constitutional experts say that Spain is the state with one of the highest levels of constitutional conflict in the world. This demonstrates the internal tensions that exist around the state model, which have not yet been sufficiently channelled.

The resolution of these conflicts ultimately falls to the Constitutional Court. Well, although there have been different periods in its doctrine, in STC 31/2010, on the 2006 Statute of Catalonia, the supporters of the central State and the centralist thesis prevailed. Since then, the system of guarantees is clearly in favour of the state. Moreover, we can say that it is unilateral, without sufficient guarantees of bilaterality and democratic balance. Some say that in that ruling a constitutional mutation was made in favour of the centralist model, made without the reform that corresponded to it, so the democratic legitimacy of that model is weak.

This more centralist interpretation clearly points to the possibility of the state intervening in any area, regardless of the original distribution of competences in the constitutional bloc.

Moreover, since the ruling, the value of the Statute of Autonomy has been devalued, i.e. until 2010 the Statute of Autonomy formed part of the constitutional bloc and in order to resolve the conflict of competences it was not only the VIII Constitutional Text. It is necessary to look at the title, but the competences assumed by the Statutes of Autonomy could serve to delimit the decision-making capacity of the State. Today, however, it is the Constitution that has absolute priority and the Statute of Autonomy has become a secondary law.

Moreover, since STC 31/2010, the category of exclusive competences of the ACs has disappeared, and they have been converted into shared or executive competences at present. Exclusive powers belong to the State.

Throughout all these years, an attempt has been made to channel the conflicts through bilateral relations, as it exists in the Economic Agreement, using for this purpose Article 33. 2 of the Organic Law of the Constitutional Court (Joint Commission for the Suspension of the Appeal) and the reform of the LORAFNA of Navarre in 2010 which creates the Cooperation Commission, but it would be interesting to analyse to what extent the agreements reached in this Joint Commission have managed to guarantee the decision-making capacity of the Autonomous Communities, since in many occasions they are agreements adopted under the centralist doctrine of the Constitutional Court in order to avoid the appeal.

It is worth noting how since 2013 a basic state law has established the general regime of subsidy schemes, conditioning its legislation. The law on contracting does not exist in the ACBC, as it can also be understood as self-censorship, knowing that the State’s law greatly conditions the development that Basque institutions could make.

And this basic regulation can also be dictated even if the autonomous community has exclusive competence in a matter and the State lacks competence in that area of competence. Can we develop our own Social Protection or community surveillance systems today without the State setting limits?

• Increase the state’s capacity to act, as well as the scope of spending power, even to those areas where the Constitution lacks competence according to its original distribution. We have several examples in this field. The State can allocate subsidies to youth or the elderly without having competence and condition the promotion policy of the Autonomous Communities (student grants,…).
• Using indeterminate legal concepts such as ‘general interest, supra-autonomous or supra-territorial scope’ to justify the State’s capacity to act in the territorial sphere of the Autonomous Communities. It has used such concepts in basic services, the environment, security and market organisation to establish a centralist vision.
• Using a centralist legal interpretation: knowing that the doctrine of the Constitutional Court, the interpretation of the State’s lawyers, the Council of State, as well as that of the courts, all make interpretations in favour of the State regarding the distribution of powers. This interpretation has influenced the delimitation of competences and has favoured the deployment of the State’s competence titles to the detriment of the material scope of the autonomous competences.

To conclude, ‘The territorial is also political’.

In feminist theory we argue that ‘personal space, the personal is political’ (Carol Hanisch, 1960) to invite an understanding that women’s individual experiences are deeply rooted in wider systems of power. By making visible and challenging these links, we can work together to transform our society. In this way we argue that the domestic is political, that our bodies are political and so are our emotions.

Well, we can also bring this idea to sovereignty theories and reformulate it by saying that ‘the territorial, that of the land, is also political’.

From this maxim, we can better understand that feelings of attachment to the territory and territorial capacity must also be conceived as a sphere of decision making where power relations must be balanced and egalitarian. Power relations that make it possible to have tools for making political decisions in response to the needs of the territory, within a logic favourable to coexistence, in order to enable greater cohesion and living conditions among the people who live and work in the territory.

The policies of linguistic normalisation and the promotion of minority cultures are a good example of how the territorial is political, since the cultural and linguistic supremacism of Castilian has led voices to point out that the policies promoted by these policies are discriminatory. Instead of supporting policies of coexistence between different people, policies of segregation are defended, condemning society to mutual ignorance and misunderstanding.

Being territorial politics, we can expand spaces for sharing experiences and emotions derived from the diversity of the territory, towards more inclusive and supportive societies where what is different is seen as a contribution to diversity and an element of wealth. But in order to carry out this complex management, decisions must be debated and taken in the territory. We need our own framework of powers to give us a broad decision-making capacity.

Images: EAJ-PNV Beasain, Wikipedia (K3T0), Wikipedia (Epaminondas Pantulis)