Spain

General information about the policy process

The policy process in Spain can be done either in the State or in the Regions (''Comunidades Autónomas). The State, laws can be done by the Congress (Congreso de los Diputados''), in which the Senate also participates, but without having a decisive say. Those laws can be Organic Laws (Leyes Orgánicas)  and Ordinary Laws (Leyes Ordinarias), the former requiring an absolute majority while the latter a simple one. Also, the Spanish government can pass, in case of extraordinary and urgent need, Decree-Laws (art. 86 Spanish Constitution) and also Legislative-Decrees if the Congress delegates that power for a certain matter (art. 82-85 Spanish Constitution).

Laws in the Regions can be approved by the Autonomous Assemblies or, in an analog way, by the regional governments using Decree-Laws or Legislative-Decrees. They also have the right to elaborate and execute European policies not directly applicable that may affect those assumed by the Region in its Statute.

Both regions and the State, depending on the competencies they have, take the lead in the policy-making process and in implementation. The Constitution foresees several matters for which the state has exclusive competence.

In some specific cases, the local governments also have competences in policy making (for example, Law of Contracts, although they must aslways comply with the general provisions at state level).

Main national actors: 

Spanish Congress (the Senate is almost irrelevant to that matter) and Spanish government and its ministries. (Congreso de los Diputados, 2020)

+Spanish government (through the passing of Decree-Laws) (Moncloa, 2020).

Regional or local actors involved

17 Regions with similar competencies that cover the entire Spanish territory. Moreover, two autonomous cities in Africa, Ceuta and Melilla, with similar competencies of a region. Importantly, in the global context of constant increase in percentage of urban population, city councils also have a role in the implementation of certain European directives, especially the most populated ones such as Madrid and Barcelona.

+ The Spanish Constitution establishes distinct legislative and exclusive competencies for the Autonomous Regions in areas as varied as: social services, agriculture, industry, commerce, tourism and sports. It is worth noticing that not all Autonomous regions have the same competencies, for example the Region of Catalonia, the Basque Country, Navarre and the Canary Islands different competencies on fiscal and police matters (Administración, 2020).

+It is important to highlight the case of Basque Country and Navarre, which, according to the First Additional Provision of the Spanish Constitution, maintain their historic rights called "fueros". That means they have more authority on fiscal matters, collecting and distributing their own taxes. Therefore, in relation to transposition and implementation of European policies, they have much more competences than the rest of Autonomous Regions.

It is worth noting that in terms of regional autonomy Spain ranks second at the European level, only behind Germany.

The relationship between actors

The Spanish Constitution establishes different competencies for the Regions and the State. Therefore, the relationship between them is not made in terms of hierarchy, but depending on who has the competence (Muñoz Machado, 273). Yet, it is worth mentioning that in many cases the Constitution is not really clear, nor the jurisdiction of the Constitutional Court (which is responsible for interpreting the Constitution and solving disputes about competencies) has established definite criteria, therefore in many aspects, there is a sort of "competencies as hieroglyphics".

For those matters for which the State does not have exclusive competence, implementation of normative is done at regional and local level.

The central government and the autonomous communities play a crucial role when it comes to the transposition process. As previously stated above, Spain, as a member state, is the only responsible vis-à-vis the Union to duly transpose directives, and in case of incorrect transposition or non-transposition, it can be brought before the European Court of Justice. Until now, The Spanish Constitutional Tribunal has confirmed the need to reconcile the obligation to duly comply with EU obligations and the need to respect the existing distribution of powers governing the internal constitutional framework of Spain, but it has yet to elaborate on the scope and consequences of such a statement. (1) The Spanish Constitution enshrines a set of exclusive competencies granted to the Spanish legislator and competencies that provide legislative powers to the regions in a wide number of fields. (article 148, and article 149 of the Spanish Constitution). In most cases, the central government is tasked with the transposition of directives (Tajadura Tejada, 2017). As directives are developed in the framework of the internal market, it´s transposition falls within the exclusive competence of the state in relation to financial matters (article 149.1.13 Spanish´s Constitution). However, one should take a case by case approach and assess the subject matter of the directive, because this is the only way to determine at which level transposition is going to take place. If the directive falls under the scope of the regional (or even local) competencies, they will have to adopt measures to carry out the transposition. For instance, compliance with the air quality directive depends to a great extent on mobility plans usually designed and implemented by cities. In this sense, the principle of sub-national subsidiarity is applied, although with mixed outcomes. This poses the following questions: is there any mechanism to ensure transposition at regional level? (preventive mechanisms) and, in the event of non-transposition or incorrect transposition, can the central government adopt measures to avoid a breach of EU Law? (corrective mechanisms). Even though there are no such mechanisms to prevent or correct breaches of EU obligations, the Spanish legal system can potentially refer to several instruments under the Spanish Constitution which could serve the purpose:  Spanish law as supplementary provision under article 149.3,harmonisation laws under article 150.3 and the coercive action of the state ( article 155).

Regarding the areas of Law, it is quite important to outline which matters pertain exclusively to the central Government and the Congress authority and which ones can be developed and implemented by the regional and local bodies. The attribution of the competencies for the regional bodies can be consulted in art. 148 of the Constitution and the national exclusive competencies are regulated under the art. 149 of the same legal text. In order to be able to implement a certain competence, the Autonomous Community has to adopt previously that assumption into the Statute of Autonomy. Thus, in case of the Criminal, Penitentiary and Commercial Law are mostly reserved to the national bodies, while Civil and Administrative Law can be created and developed in those regions (Comunidades Autónomas) which had their own dispositions in the matter that is to be implemented previously to the entry into force of the Spanish Constitution. The Procedural Law is mostly applied under the national conditions and there exists only one judiciary administration for the entire national territory. In the Administrative Law field, the competencies are shared between the central bodies and the regional and local ones. These last have specific comepetencies in  spacial and town planning and Real Estate Law (art. 148.1 of the Constitution). There also exist some regions which implement their special conditions in Tax Law matters, like Canary Islands and the Basque Country, reaching an almost autonomous system from the Central Government in the last case. Regarding the Labor Law, it is under the exclusive competence of the central bodies but it can be implemented by the regional bodies also.

+The Courts and the Constitutional Court

Another factor to take into account are the courts and the Constitutional Court. Both play a very important role in controlling how it is transposed. In the case of the courts, control would be in front of the citizen. Since it is the citizen who could, if he is interested, denounce the possible damage that the norm may have done. The Constitutional Court is the guarantor of the Constitution and, therefore, of the rights contained in it. In the event that this Court declares the transposed norm, contrary to the Constitution, the norm could be eliminated from the Legal System.

+Cooperation mechanisms between National, Regional and Local bodies

It is also worth mentioning the eixistance of both formal and informal mechanisms of cooperation on policy decision-making and policy implementation between the national and regional level and the national and local level. In this sense, the Autonomous Regions can coordinate their responses through the (not so much used) Conference of Presidents, a high-level meeting between the Spanish President and the Presidents of each Autonomous Region.

In case a certain matter needs to be discussed specifically there does exist the Sectoral Conferences, as well as the Bilateral Conferences in case the Central Government has to coordinate with a certain Autonomous Region. In the last year, the Sectoral Conference on Health ('Consejo Interterritorial de Salud') has gained a lot of attention as it coordinates the response against covid-19 pandemic between different regions.

On the other hand, the local governments also have a way of coordinating with the Central Government through the Spanish Federation of Municipalities and Provinces, in which regular meetings with the national government are held and whose role has exponentially gained attention in recent times as this organism has been divided over the Central Government's decision to use local government's surplus to finance the recovering costs of the Covid-19 pandemic.

On shared competencies like environment or agriculture, there are commitees and working parties at lower levels with experts constanly working on the issues that need coordination. The line minister coordinates the groups and tries to get a more homogeneus policy among the different regional goverments, and transfer the Comission instructions about how to improve complying of those policies.

The relation between the domestic legal system and European Law

We should take in account that the European legislation is part of the Spanish legal system and it is conceived as a source of law. It is due to the adhesion to European Communities in 1986. So, the European Law has a direct effect and a kind of primacy.

Article 1 of the Spanish Civil Code defines the sources of law in this State. In its section 5, the Civil Code establishes verbatim:

The legal rules contained in international treaties do not apply directly in Spain until they have become part of the internal legal order by being published in full in the Official State Gazette (BOE).

This page provides information on the Spanish legal system and a general overview of the country's legal order: European e-Justice Portal - Law (europa.eu) https://e-justice.europa.eu/content_member_state_law-6-es-en.do?init=true&member=1

Case Study: Covid 19 and distribution of roles in the process of vaccination

On October the 15th, the EU Parliament and Council sent a Communication regarding the preparation of COVID-19 vaccination strategies. This communication would mark the beginning of interactions between the EU institutions and Member States in regard to the vaccination process in the European Union, still taking place at the time of writing.

In the case of Spain, it is the central Government the one receiving the vaccines and designing the vaccination strategy through the Interterritorial Council of the Health National System (CISNS in Spanish), who determines the key workers eligible to be included among priority groups along with the elderly and other key groups. However, it corresponds to every autonomic community the distribution of their own share of vaccines received from the central Government, as well as to determine the most effective ways of ensuring the vaccination of their residents.

That, however, has created some inequalities determined, among other factors, by the resources available in each autonomic community or the political views of the regional governments. That is how, on the first week of vaccinations, Asturias was able to successfully administer 81% of their share of the vaccines, while Cantabria only manager to administer a 5%.

References:

Administración. (2020). Inicio página web. Available at: https://administracion.gob.es/pag_Home/espanaAdmon/comoSeOrganizaEstado/ComunidadesAutonomas.html#.X274gS8lNQI (accessed 26/09/2020).

Congreso de los Diputados. (2020). Inicio página web. Available at: http://www.congreso.es/portal/page/portal/Congreso/Congreso (accessed 26 September 2020)

El País (2021) El avance Desigual de la vacuna en España: del 81% de dosis usadas en Asturias al 5% de Cantabria. Available at: https://elpais.com/sociedad/2021-01-04/el-avance-desigual-de-la-vacuna-en-espana-del-83-de-dosis-usadas-en-asturias-al-5-de-cantabria.html

European Commission (2020) Communication from the Commission to the European Parliament and the Council: Preparedness for COVID-19 vaccination strategies and vaccine deployment. Available at: https://ec.europa.eu/health/sites/health/files/vaccination/docs/2020_strategies_deployment_en.pdf

Ministerio de Sanidad (2020) Estrategia de vacunación COVID-19 en España: Líneas Maestras. Available at: https://www.mscbs.gob.es/gabinetePrensa/notaPrensa/pdf/24.11241120144431769.pdf

Real Decreto de 24 de julio de 1889 por el que se publica el Código Civil (1889). Ministerio de Gracia y Justicia «Gaceta de Madrid» núm. 206. Referencia: BOE-A-1889-4763.

Spanish Constitution (in English): Available here: http://www.congreso.es/portal/page/portal/Congreso/Congreso/Hist_Normas/Norm/const_espa_texto_ingles_0.pdf

Muñoz Manchado, S. (2013), Las Comunidades Autónomas y la Unión Europea, Academia Europea de Ciencias y Artes. Available at:

http://www.academia-europea.org/pdf/LasComunidadesAutonomas_y_la_UnionEuropea.pdf

Moncloa. (2020). Inicio página web. Available at: http://www.lamoncloa.gob.es/lang/en/Paginas/index.aspx (accessed 26 September 2020).

Tajadura Tejada, J. (2017). La aplicación del Derecho europeo por las Comunidades Autónomas´´ in Luis Ignacio Gordillo Pérez, Constitución Española e Integración Europea. Treinta Años de Derecho Constitucional de la Integración. Tirant lo Blanch 2017. 189-260, p.205

LO 10/1985, 2nd august

The following map of actors is good, however take into account that Congress, is not the only body forming the Parliament. Parliament is both, the Congress plus the Senate.