On 27th October 2017 the Senate approved, by an absolute majority, the authorisation of the Spanish Government to carry out a series of measures in Catalonia, under article 155 of the Spanish Constitution, in order to fulfil constitutional obligations. Said measures had been proposed to the Senate by the Government a few days earlier, on 21st October, following the failed demand made to the President of the Generalitat de Catalunya (the autonomous government in Catalonia, hereinafter referred to as “Generalitat”). Such measures are exceptional in that they have not been applied since the adoption of the Constitution in 1978. Therefore, many questions exist as to how such measures shall be executed and with what means.
Notwithstanding the above, certain very important decisions of legal and political relevance have already been taken. On 27th October, in light of the resolution of the Senate, in an extraordinary Council of Ministers, the Spanish Government passed a series of resolutions, among which was the decision to remove, with immediate effect, the President of the Generalitat (and the regional government), to dissolve the regional Parliament and to call elections in the autonomous region on 21st December 2017. Therefore, at this very moment, there is no autonomous government and its functions have been assumed by the Spanish Government, as explained below.
Said resolution passed by the Senate approved the majority of the measures proposed by the Spanish Government except for 8 reservations or clarifications.
The measures which were definitively passed, and which entered into force on 27th October, may be divided into 5 blocks:
a) Measures aimed at the Catalan President, Vice-President and Government.
As mentioned above, on 27th October, the Spanish Government terminated all of the functions of the Generalitat, its President and its Vice-President. Said functions have now been assumed by the Spanish Government or entities created thereby for such purposes.
b) Measures addressed to the Administration of the Generalitat.
The Generalitat shall continue to function as an administrative organisation, therefore, this institution has not been dissolved neither have its functions been suspended. That said, it shall act under the guidelines of the entities created by the Spanish Government, with new legislation for exercising its competences. Furthermore, its actions shall be subject to a communication regime or prior authorisation, without which its decisions and actions shall be null. Likewise, the Spanish government shall be able to cease any office, public authority or personnel of the Generalitat.
c) Administrative measures.
The regional police force shall be subject to the orders of the Spanish Government.
The State police force and law enforcement bodies (National Police and Civil Guard – Spanish military police force) shall be able to be deployed in Catalonia, which, where necessary, may substitute the regional police force.
As for financial implications, the Spanish Government may exercise the necessary competences, including in budgetary and tax areas. That is to say, it shall decide budgets and shall control the collection of local taxes. The purpose of these measures is to prevent the collection and dedication of public funds to the secessionist process.
The functions of the Generalitat in telecommunications and digital services shall also correspond to the Spanish Government. In this area, it is understood that it acquires the control or guardianship of the Catalan public television and radio. It shall also take control of the telecommunications framework and data bases and information sources subject to the Generalitat.
d) Measures aimed at the Catalan Parliament.
While these measures are in force and until a new Parliament is constituted as a result of the elections in December 2017, the President of Parliament may not propose any candidates to the presidency nor hold any debate or vote of approval.
e) Cross-sectoral measures.
Legally speaking, the provision which declares the invalidity and inefficiency of regulations, acts and decisions passed in contravention of the measures approved by the Senate is particularly interesting. The question here lies in knowing who and how, in each case, said acts or decisions shall be declared to contravene the measures taken by the Spanish Government and by whom. In any event, such acts and decisions shall be rendered null and void and shall lack any legal effect.
Furthermore, publications in the Official Gazette of the Generalitat (Official gazette which publishes the rules and decisions of the Generalitat and its Parliament) shall not be made lack prior authorisation or if they do not comply with the guidelines agreed by the entities created by the Spanish Government for the application of these exceptional measures. It is known that the publication of a regulation or a legal provision is a precondition for its effectiveness to be deployed; thus, the control of the Official Gazette of the Generalitat is intended to prevent the unconsented publication of any legal provisions contrary to the measures approved by the Senate.
The functions of the President and the Vice-President to appoint and organise the departments of the Generalitat have been assumed by the Government of Spain or by the entities or authorities created in their place. Therefore, they may create further entities and designate authorities in Catalonia to ensure that these measures are complied with, or what amounts to the same thing, those in charge of important departments relative to the secessionist process shall be dismissed, in order to ensure the fulfilment of these Measures.
It is also important to point out that if the Generalitat were to impose disciplinary proceedings upon their civil servants/public officials or employees in order to penalise them for fulfilling the constitutional rule or observing these measures, such proceedings would be null and void and ineffective. Consequently, those civil servants/public officials who may be obliged to comply with orders which vary from or are contrary to the measures adopted by the Spanish Government shall be protected. Furthermore, the Spanish Government may seek administrative, criminal or patrimonial responsibility from those who participate in said disciplinary proceedings.
In order to achieve the effective application of the measures, it is provided that the Spanish Government or the entities or authorities created thereby, exercise disciplinary authority with regard to the authorities and the civil service staff and employees of the Catalan Parliament and administration, based upon the state or regional disciplinary regulations, where appropriate.
Where the duration of the measures is concerned, it is provided that they shall be applied up until the takeover of the new Generalitat Government, although the Spanish Government shall be able to request the Senate their modification, whether that implies making them more lax or firm, depending on how the events unfold. On the other hand, the Spanish Government may bring forward the end to the measures if the cause which provoked them also ceases to exist.
On its part, the Senate has introduced a clarification to the measures proposed by the Government: it urges the “proportionate and responsible” application thereof, adjusting their application depending on how circumstances develop, which is a call for moderation and reason, both of which must prevail at extraordinary times.
Eduardo Vilá
Vilá Abogados
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3rd of November 2017
