2016 Global Review of Constitutional Law

the Government, the Royal Decree which
specifically declares a state of exception
would have the status of a law, as states of
exception as described in Article 116 of the
Spanish Constitution suspend and alter the
application of laws. Because of that, limitations
to fundamental rights due to states of
exception fall under the jurisdiction of the
Constitutional Court, and not ordinary administrative
courts.
4. The right to health
In ruling 139/2016, the Court responded
to the appeal on the grounds of unconstitutionality
raised by the Parliament of Navarra
against various articles of Decree-law
16/2012 on urgent measures to guarantee the
sustainability of the national health service
and improve the quality and safety of its
services. The Court determined that it is not
unconstitutional for foreigners without residence
permits in Spain to be excluded from
the free public health service. The Court
concedes that the legislature can adjust the
conditions of service provision for the aforementioned
medical care.
Foreign, International, and/or Multilateral
Relations
Ruling 85/2016 responded to an appeal on
the grounds of unconstitutionality raised by
the Autonomous Community of the Canary
Islands against Law 2/2014, on external action
and services of the State. The challenged
law defines “out of state action and services”
as the combined activities of public administrations
undertaken externally, executed in
agreement with the objectives established
by central Government. The Autonomous
Community of the Canary Islands believed
that the definition of the concept of external
action represents a suppression of the autonomy
of Autonomous Communities, allowing
central Government to encroach on their jurisdiction.
The Court considered that Law
2/2014 is covered by central Government
jurisdiction defined in the Spanish Constitution
in relation to “international relations”;
specifically, in the inherent faculty of coordination
of central Government, as subject to
international law, in a territorially decentralized
system.
Ruling STC 228/2016 responded to an appeal
on the grounds of unconstitutionality raised
by the President against various articles in
Parliament of Catalonia Law 16/2014, on
external action and relations with the European
Union. In this ruling, the Court, applying
the consolidated constitutional doctrine,
recognized the possibility that Autonomous
Communities may undertake activities with
an external aspect, as long as they respect the
exclusive jurisdiction of the State in matters
of international relations. Along these lines,
the ruling stated that Autonomous Communities
might not sign treaties, represent the
State abroad, or create international obligations
which compromise the international responsibilities
of the State. Applying this doctrine,
the Constitutional Court struck down
articles aimed at promoting the establishment
of “bilateral” relations between Catalonia
and other countries as unconstitutional,
along with that provision that shaped the socalled
“public diplomacy” of the Generalitat.
CONCLUSION
The vague definition of the territorial model
in the Constitution has traditionally produced
many disputes between the State and the Autonomous
Communities regarding, amongst
other things, the interconnection between
competences allocated to them. Controversies
did not spare competences allocated exclusively
to the central State by Article 149
of the Constitution. It was the Constitutional
Court takes to define ad cesium challenged
vertical divisions of competences. The dispute
between the State and Autonomous
Communities has grown in recent years due
to two factors: a) the economic crisis, and
b) the Catalan struggle for independence. In
2016, the Constitutional Court had the opportunity
to deal with such matters.
With regards to the first question, throughout
2016 the Court continued to rule on whether
the measures taken by the State to reduce
spending as a result of international agreements
have encroached on the jurisdiction of
Autonomous Communities. Different cases
made it clear that the Court has not always
been able to come up with clear criteria to
determine what is a matter for the State and
what is a matter for the Autonomous Communities
in areas of common policy. The
rather vague wording used by the Constitution
to define State competences such as
“general management of the economy”, “basic
legislation”, and “development of fundamental
rights” allowed the Court to uphold
State interventions against the Autonomous
Communities, despite the fact that the Constitution
and the Statutes of Autonomy also
grant them some jurisdiction over economic
matters and fundamental rights in their own
territory.
Secondly, the struggle for sovereignty in
Catalonia has not only caused various jurisdictional
disputes between the Autonomous
Community of Catalonia and the State but
has also triggered an important debate in the
Court concerning the model of constitutional
jurisdiction provided by the Spanish Constitution.
In two of its most important decisions
(186 and 215/2016), the Court ruled that the
power to enforce its own decisions is consistent
with the Constitution. This power was
introduced in the Law on the Constitutional
Court in response to repeated non-compliance
with the Court’s rulings by Catalonia.
However, the dissenting opinions given by
various judges demonstrate that even the
Court’s own role in the State is open to discussion.
In short, constitutional jurisprudence
in 2016 showed that the position of the
bodies and institutions of the decentralized
State is contentious, as is the position of the
body called to rule on it.
In 2016, the Court continued to endorse the
application of the European Court of Human
Rights’ doctrine of hate speech. This doctrine
supported the Constitutional Court’s
decision determining the position of freedom
of expression in the democratic State in application
of the theory of balancing of rights,
underlining the doctrine of hate speech.
However, the inclusion of these doctrines
within the dogma of fundamental rights assumed
by the Spanish Constitution may be
somewhat problematic. It remains to be seen
how this legal pattern develops in the coming
years.
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