Parliamentary Decisions on its own Behalf and Spanish Constitutional Law
A phrase like "Parliament decisions on its own behalf" has not been codified in Spanish legal and political discourse. Nevertheless, it is acknowledged that there are certain issues where political parties within parliament possess distinct interests that may influence their legislative choices. To counter the potential hazards involved, various elements have demonstrated varying degrees of efficiency in ensuring that decision are being made for the common good, despite the influence of party-specific concerns.
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Strawberry Fields Forever
Reading the brilliant blog post of my colleague Teresa Navarro, one may get the impression that the situation in Doñana is principally the epitome of an ongoing electoral process. However, the threats to the ecological integrity of that unique natural space emanate from the very origins that justified its protection. The current crisis is but the culmination of the constant and serious threats, caused by the proposed bill to legalize new irrigation and aggravated by incompetence and lack of responsibility of the state, regional and local authorities ignoring the requirements of EU law.
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Of Red Fruits and Social Conflict
These days of electoral campaign in Spain, as usual, water is among the current issues. Recently, a controversial proposal by the conservative parties of the Andalusian Parliament aims to re-grant the status of agricultural land to certain land in the vicinity of the Doñana National Park (Huelva, Spain). Doñana suffers a long social conflict triggered by several decisions adopted to protect this singular place. As we will see, this is a clear example of the political use of the tension generated by environmental protection and socio-economic interests, especially in times of elections.
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Achmea Goes to Washington
Recently, a US District Court trashed a Dutch company's arbitral award against Spain. Why? Because investor-state arbitration within the EU violates European law. Yet, many tribunals keep issuing arbitral awards - especially under the infamous Energy Charta Treaty. Challenging those awards in domestic courts outside the EU, like here in Washington D.C., might work as corrective to the continuing illegal assumption of jurisdiction and blatant disregard for the EU Treaties by arbitral tribunals.
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Short Detention, Long Shadow
Several videos show the arrest of Clara Ponsatí last Tuesday in the streets of Barcelona, a Member of the European Parliament (MEP). Separatist politicians have forcefully condemned the arrest as an ‘attack on democracy’, ‘political violence’, ‘repression’ and ‘abuse of power’, while also asserting an egregious violation of an MEP’s immunity. This piece argues that the arrest warrant issued by the Tribunal Supremo on 28 March 2023 does not hold up against established constitutional principles.
Continue reading >>Towards European Rights of Nature
On 24 February, Marie-Christine Fuchs on this blog discussed the 2022 Spanish Mar Menor Act – the first rights of nature case in Europe – in light of Latin American precedents and the criticism the Act is facing from right-wing populists in Spain. Whether the Act remains the first law in Europe granting rights to a non-human natural entity will now be decided by the Spanish Constitutional Court. In her analysis of the socio-legal foundations of the Mar Menor Act, Fuchs argues that it had a “more fragile argumentative basis” than precedents in Latin America. In contrast, this article argues that the Spanish legislator succeeded in placing the Mar Menor Act on its own argumentative footing, thus opening the door for a genuinely Western liberal conception and implementation of rights of nature in Europe.
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Rights of Nature Reach Europe
On September 30, 2022, the Spanish Senate approved the "Mar Menor Act" (Law 19/2022) which granted legal personality to the Mar Menor lagoon and its basin. Being the first legal text in Europe to recognize a natural entity as a subject of rights, it is one more piece in the mosaic of a global movement towards ecological justice, which tries to find strong legal answers in times of global ecological crisis. In fact, the Spanish landmark decision follows the precedents of countries such as Colombia, Ecuador, New Zealand, India and the United States. In this context, it is worth asking whether the legal and socio-cultural bases of the concept of the rights of nature, as developed in the aforementioned cases, especially in those stemming from Latin America, are also sustainable in Europe and for the Mar Menor case.
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Separatisten vor dem EuGH
Mit dem Urteil vom 31.01.2023 hat der EuGH der bisherigen Geschichte zur Auslieferung der führenden Politiker:innen der katalanischen Autonomiebewegung nach Spanien ein weiteres Kapitel hinzugefügt. Gleichzeitig entwickelt der Gerichtshof seine Rechtsprechung zu den Ausnahmen des gegenseitigen Vertrauens bei Gefahren für ein faires Verfahren fort, die dem Betroffenen nach der Vollstreckung eines Europäischen Haftbefehls im Ausstellungsstaat drohen – mit noch offenen Folgen für den Auslieferung der katalanischen Politiker:innen.
Continue reading >>An Institutional Crisis that Dissolved Like a Sugar Cube
In mid-December, Spain faced a constitutional logjam when judges blocked a government bill to change how the judiciary’s governing council, the General Council of the Judiciary (CGPJ), operates. But when the situation seemed to be heading towards a serious institutional crisis, on 27 December, the CGPJ unanimously elected its two corresponding jurists. The crisis has dissolved without a trace, like a sugar cube in tea. But it has left a very bitter aftertaste.
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Judges as Guardians of Promises
On 16 November, the Minister for Equality accused the Spanish judiciary of being macho-ist: “macho-ism can compromise both the impartiality and the integrity of judicial systems; macho-ism may make judges apply the law erroneously and wrongly”, said the Minister. After much criticism, Podemos, in support of the Minister, rounded up her argument: “Spanish judges are fascists”. These comments are part of an intense battle that is being fought between the government (Psoe/Podemos) and the Spanish Popular Party regarding the renewal of the Spanish General Council for the Judiciary, the judges’ governing body.
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The Mar Menor Lagoon Enjoys Legal Standing: and now, what?
On 30th September, the Spanish Parliament has completed the ‘Mar Menor Act’, granting legal personality to the lagoon of the Mar Menor and its basin. It is the first legal text in Europe which gives rights and legal standing to a natural body. Notably, the process was initiated by a public campaign triggering the legislative procedure. As legal scholars, we fear that this move, although it constitutes a strong expression of ecological awareness, will not solve the lagoon’s serious environmental deterioration.
Continue reading >>Sharing the Cost of the Crisis
In late July, the two political parties supporting the Spanish Government (the socialist party and the leftist Podemos) presented a proposal for approving a law on the windfall profits of banks and large energy companies in Parliament. This is supposed to tax companies earning extra profits from the recent price increase in energy and the financial sector which was slightly affected by the increase in inflation but will have a considerable profit from the rise of interest rates. The bill could serve as an example for other European countries.
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The Paradox of Efficiency: Frictions Between Law and Algorithms
On the 13th of January 2022, a Spanish Administrative court ruled in favour of algorithmic opacity. Fundación Civio, an independent foundation that monitors and accounts public authorities, reported that an algorithm used by the government was committing errors. BOSCO, the name of the application which contained the algorithm, was implemented by the Spanish public administration to more efficiently identify citizens eligible for grants to pay electricity bills. Meanwhile, Civio designed a web app to inform citizens whether they would be entitled for this grant.
Continue reading >>Good Intentions May Not Be Enough
On 29 June 2021, the Spanish Cabinet approved to sponsor the Draft Bill for the Real and Effective Equality of Trans People and the Guarantee of the Rights of LGTBI People in Parliament. Even though the Bill’s main goal is to introduce game-changing and long-demanded reforms, such as the incorporation of the self-determination principle in legal gender amendment procedures or a state-level set of norms against LGTBIphobia, political struggles within the government have resulted in a weak text. And, most importantly, they are causing a major delay to its parliamentary discussion and approval.
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Legislative Activity and Inactivity in the COVID Pandemic in Spain
In Spain, hundreds of laws have been amended in reaction to the COVID pandemic. But Spain is still without a law determining when elections can be suspended, what is the deadline for extending the state of alarm, when a town can be closed perimetrically, and so on. Against logic and statistics, our public authorities have considered that the organic laws of 1981 and 1986 were sufficient for this purpose. However, they were clearly not designed for a pandemic unprecedented since 1918.
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The Right of Catalonian Leaders to Protest
On 22 April, the Spanish Constitutional Court issued its first judgement on the constitutionality of the conviction of the Catalonian leaders for the events of October 2017. It upheld the Supreme Court’s interpretation of the crime of sedition which blurs the line between legitimate protest and sedition. The judgment will therefore have repercussions beyond this particular case and may affect the right of protest and dissent.
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How Spanish Politics Turned into a Political TV Drama
Recently, a set of unexpected moves and countermoves in Spanish politics have resulted in the collapse of two regional governments and a snap election in Madrid. This election anticipates a fierce battle between the two blocs that have dominated Spanish politics since 2015, even more so after vice-president Iglesias’ decision to step down from government to run in Madrid. The outcome will have a significant impact on national politics, determining the fate of most actors and opening a new political cycle in Spain.
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Spain: One Pandemic and Two Versions of the State of Alarm
The Spanish response to the waves of the COVID-19 pandemic that have affected the territory has so far largely relied on emergency powers. The measures were adopted on the basis of the pre-existing legal framework provided in article 116 of the Constitution and its legislative development, Ley Orgánica 4/1981 on state of alarm, exception and siege, adopted on 1 June 1981 (henceforth LO 4/1981). As explained below, two different approaches have characterised the response to the first and second wave. However, both have their legal basis on the same norms and are based on the same legal category, i.e., the state of alarm ('estado de alarma').
Continue reading >>A Political Impasse, and How to Get Out of It
At the end of January, EU Commission Vice-President Věra Jourová addressed a letter to a Spanish MEP. In this letter, the Commissioner, using diplomatic language, expressed her concern that the reform of the General Council of the Judiciary (CGPJ), initiated by the ruling Spanish left-wing coalition PSOE-Unidas Podemos in September, could diminish the independence of this governing body of the Judiciary and thus of all judges and courts.
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The Honor of the Spanish Flag
In a controversial decision dated 15 December 2020 and published one month later, the Spanish Constitutional Court has rejected the appeal of a member of an independentist trade union condemned for desecrating the Spanish flag during a labor protest. The ruling denies constitutional protection to such expressions even in the context of political activism. It challenges the case law of the ECHR and reduces the room for freely expressing political opinions in Spain. The ruling shows that the freedom of expression is increasingly at risk in Spain.
Continue reading >>No, the Spanish Constitutional Court has not endorsed migrant push-backs in Ceuta and Melilla
The Spanish Constitutional Court has just published a long-awaited judgement on migrant push-backs or “devoluciones en caliente” at the Spanish enclaves bordering on Morocco. These push-backs are controversial, to say the least. While media rushed to cover the press release summary, and reports that the SCC seemed to have endorsed the practice were not wholly accurate, the actual judgement is flawed by internal contradictions. There is an irreconcilable gap between the theoretical respect for fundamental rights, and their effective protection.
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