The 31/2010 ruling of the Constitutional Court of Spain on the 2006 Statute of Autonomy of Catalonia was made public on June 28, 2010, four years after the appeal of unconstitutionality filed by the People's Party on July 31, 2006, against 114 of the 223 articles of the Statute of Autonomy of Catalonia of 2006, which had been ratified by Catalans in the referendum held on June 18, 2006. The Constitutional Court, by eight votes to two, declared 14 articles unconstitutional and subjected another 27 to the court's interpretation (by six votes to four). The court also ruled that the references made in the Statute's preamble to Catalonia as a nation and to the national reality of Catalonia "lack legal effect." The court's president, María Emilia Casas, acted as rapporteur. The full text of the ruling and the five dissenting opinions accompanying it became known on July 9, 2010, one day before the demonstration in Barcelona rejecting the ruling, held under the slogan "Som una nació. Nosaltres decidim" ('We are a nation. We decide').
Background On September 30, 2005, the Parliament of Catalonia approved the reform of the Statute of Autonomy of Catalonia of 1979, which introduced so many changes that it was in effect a new Statute. All Catalan political groups supported it except the People's Party of Catalonia. In November it was brought before the Congress of Deputies for approval, as required by the Spanish Constitution of 1978, but there it underwent numerous changes that led Republican Left of Catalonia, one of the parties promoting the new Statute and then part of the "tripartite" government of the Generalitat of Catalonia led by socialist Pasqual Maragall, to ultimately withdraw its support, while the People's Party continued to oppose it.
The new statute, already approved in Congress, was finally put to a referendum in Catalonia on June 18, 2006, and approved by 74% of voters, with a turnout of 49%. A month and a half later, on July 31, the People's Party filed an appeal of unconstitutionality before the Constitutional Court, challenging 128 of the Statute's 223 articles. This appeal was followed by six others filed by the Ombudsman and by five autonomous communities (Aragón, the Balearic Islands, the Valencian Community, Murcia, and La Rioja), all governed by the People's Party except Aragón, which was governed by a coalition between the Socialist Party of Aragón and the Aragonese Party.
Three days before filing the appeal before the Constitutional Court, Mariano Rajoy had listed the eight main elements of unconstitutionality that the PP saw in the Statute:
that Catalonia be considered a nation, since "from a constitutional standpoint, there is no nation other than the Spanish nation, the holder of sovereignty," and that nation "cannot be equated with the nationalities and regions that make up its indissoluble unity" and whose statutes are "a power derived from the Constitution"; the "privileged" treatment given to the Catalan language stemming from treating knowledge of it as a duty and from "the exclusive consideration of Catalan as the language of instruction," which, moreover, runs counter to "parents' right to choose the language in which they want their children to be educated"; the existence of "different rights and duties" for Catalans than for the rest of Spaniards, because this "runs counter to the equality of all Spaniards"; Judicial Power for Catalonia, because it "breaks with the judicial unity of Spain"; the distribution of powers between Catalonia and the State; the principle of bilaterality "which privileges Catalonia and lays the groundwork for an asymmetric confederal model" and entails "an inequality inadmissible under the Constitution"; Catalonia's international relations, and its own financing system when this should be agreed upon among all the autonomous communities.
The critical reactions of the Catalan parties to the PP's filing of the appeal were immediate. The PSC accused the People's Party of acting with "disrespect toward Catalans" who had approved the new Statute in a referendum, and of "belittling" the idea of a "plural Spain." ERC, for its part, warned that if the Constitutional Court upheld the appeal, the new Statute "will fall even further short of meeting Catalonia's needs and will show that another constitutional framework respecting our rights is needed." CiU described the PP's initiative as an "aggression against Catalonia," although it acknowledged it was a "legitimate and respectable" decision, while ICV predicted the People's Party would fail in the upcoming Catalan elections.
On November 5, 2006, the elections to the Parliament of Catalonia were held, with results very similar to those of 2003. CiU was again the most-voted party (winning 48 seats, two more than in 2003), but the PSC, ERC, and ICV-EUiA retained an absolute majority (37 seats for the PSC, 21 for ERC, and 12 for ICV-EUiA), allowing them to renew the "tripartite" government under the presidency of socialist José Montilla, with pro-independence republican Josep Lluís Carod Rovira as vice president. The only novelty was the entry into the Catalan Parliament, with three deputies, of the new party Ciudadanos – Partido de la Ciudadanía, which, like the PP (14 deputies), was firmly opposed to the new Statute. On November 24, José Montilla — the new PSC leader after Maragall, under pressure from his own party, declined to run for re-election — was invested by the Parliament of Catalonia as the new president of the Generalitat by 70 votes in favor and 65 against. In the speech that followed, Montilla offered the opposition (CiU, PP, and Ciudadanos) a pact to develop the Statute and other major "national" issues.
Processing of the appeal Almost immediately after the appeals of unconstitutionality were filed with the Constitutional Court, a wave of cross-recusals began that froze the proceedings and extended the process for four years. The Court was made up of six "conservative" justices and six "progressive" justices, although since the court's president, María Emilia Casas, was among the latter, this gave them the advantage through her casting vote in the event of a tie. It began with the Generalitat of Catalonia, which failed in its attempt to have "conservative" judge Roberto García-Calvo recused. The People's Party responded with a recusal of "progressive" (and Catalan) judge Pablo Pérez Tremps, which was upheld, leaving the court with a "conservative" majority of six to five.
In March 2007, the Catalan government managed to have Pérez Tremps's recusal apply only to the PP's appeal and not to the other six, and two months later the government of José Luis Rodríguez Zapatero brought before the Congress of Deputies, through the urgent procedure, a reform of the Organic Law of the Constitutional Court to extend the president's term, which was due to expire in June, and thus preserve the casting vote on the "progressive" side. The People's Party responded with an appeal and by blocking the Senate's renewal of the four justices whose terms ended in December, thereby securing the "conservative" majority on the Court (since three of them belonged to that camp). The socialist government of Rodríguez Zapatero, for its part, considered seeking the recusal of "conservative" justices García-Calvo and Rodríguez-Zapata.
After the March 2008 elections, which again gave victory to the PSOE, keeping Rodríguez Zapatero at the head of the government, the Senate continued to block the election of the four justices whose terms had already expired. On May 18, "conservative" justice García-Calvo died, but his seat was not filled due to a lack of agreement between the PP and the PSOE, which restored the balance between "conservatives" and "progressives" (five to five), though the latter retained the advantage of the president's casting vote.
Over the following two years, deliberations on the ruling dragged on due to the division between "conservatives" and "progressives," with its legitimacy questioned in some quarters, since two-thirds of the justices had already completed their terms. Finally, after the court's president took charge of drafting the opinion, an agreement was reached by six votes to four (the five "progressives" plus "conservative" justice , against the other four "conservatives"), made public on June 28, 2010. It declared 14 articles and additional provisions unconstitutional and subjected another 27 to interpretation, in addition to denying any legal validity to the declaration of Catalonia as a nation made in the Preamble.
Content The ruling runs to 881 pages: 449 of background, 234 of legal grounds, three of the operative decision, and 197 corresponding to the dissenting opinions of five justices.
Preamble "without legal effect" The Statute's Preamble states "that the Parliament of Catalonia, reflecting the sentiment and will of the citizens of Catalonia, has by a broad majority defined Catalonia as a nation." The Constitutional Court held that this statement, together with the mention of the "national reality of Catalonia," lacks "interpretive legal effect," the only nature that preambles or statements of purpose possess, being wholly devoid of normative value and therefore not subject to being declared unconstitutional.[ruling of October 4, 1990:...in the Deputies' claim, a declaration of unconstitutionality and nullity of certain paragraphs or sections of the Law's Statement of Purpose is even requested, a claim that must be rejected outright, since preambles or statements of purpose of laws lack normative value and cannot be the subject of an appeal of unconstitutionality] The ruling states and adopts verbatim "the defense of ideological conceptions which, based on a particular understanding of social, cultural and political reality, seek for a given community the status of national community, even as a principle from which to seek the formation of a constitutionally legitimated will to, through the appropriate and unavoidable reform of the Constitution, translate that understanding into a legal reality." Thus, "this mention, moreover, insofar as it is the expression of a historical circumstance, is in itself legally inconsequential, without prejudice to the fact that, in any context other than the legal-constitutional one, a community's self-representation as a national reality in the ideological, historical, or cultural sense has full standing in a democratic legal order as the expression of a perfectly legitimate idea." Legal ground No. 12 of the ruling states: "the nation that matters here is solely and exclusively the nation in the legal-constitutional sense. And in that specific sense the Constitution recognizes no other than the Spanish Nation, with whose mention its preamble begins, on which the Constitution is founded (Art. 2 CE), and which expressly qualifies the sovereignty which, exercised by the Spanish people as its sole recognized holder (Art. 1.2), has manifested itself as constituent will in the positive provisions of the Spanish Constitution."Legal ground 12 (July 16, 2010). Tribunal Constitucional.
Articles declared wholly or partly unconstitutional The fourteen articles that the Constitutional Court declared wholly or partly unconstitutional, by six votes to four, are as follows (in bold the passages struck down as contrary to the Constitution):
Articles subject to the Court's interpretation The Constitutional Court upheld the constitutionality of 23 articles and four provisions provided they are interpreted in the manner it indicated:
Dissenting opinions