The EU and the Spanish Constitutional Crisis

Cecilia Rizcallah, Research Fellow at the Belgian National Fund for Scientific Research affiliated both to Université Saint-Louis Bruxelles and Université libre de Bruxelles

Background

Spain is facing, since more than a month now, a constitutional crisis because of pro-independence claims in Catalonia. These claims resulted in the holding of an independence referendum on 1 October 2017, organized by the Spanish autonomous community of Catalonia’s authorities, led by its President Mr. Carles Puigdemont. According to Barcelona, 90% of the participants voted in favor of Catalonia’s independency on a turnout of 43%.

Several weeks before the holding of the referendum, the Spanish Constitutional Court held that such plebiscite was contrary to the Spanish Constitution, and it was therefore declared void by the same Court. The Spanish central Government moreover firmly condemned this act and suspended Catalonia’s autonomy, on the basis of Article 155 of the Spanish Constitution which allows the central Government to adopt “the necessary measures to compel regional authorities to obey the law” and, thereby, to intervene in the running of Catalonia.

EU’s Incompetency in Member States’ Internal Constitutional Affairs

During these events, a contributor to the New York Times wondered “Where is the European Union?”. The Guardian stated “As Catalonia crisis escalates, EU is nowhere to be seen”. EU authorities’ restraint can yet easily be explained, at least, from a legal point of view. Indeed, the European Union has in principle neither the competence, nor the legitimacy, to intervene in its Member States’ internal constitutional affairs. Article 4.2 TEU incidentally underlines that the EU shall respect Member States’ “national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government” and that it “shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State”. The President of the Commission, J.-C. Junker stated that it was “an internal matter for Spain that has to be dealt with in line with the constitutional order of Spain” but however noted that in case of separation of Catalonia from Spain, the region would consequently “find itself outside of the European Union”. 

Puigdemont’s  Departure for Brussels

Theoretically, the EU has thus no legal standing to intervene in the Spanish constitutional crisis. Recent events have, however, brought the EU incidentally on stage.

Mr. Puigdemont, the deposed leader of Catalan authorities, left Barcelona for Brussels several days ago, where he declared he was not intended to seek asylum and that he would return in Spain if judicial authorities so request, provided he was guaranteed conditions of a fair judicial process. In the meanwhile, the State prosecutor decided to start proceedings against Mr. Puigdemont and other officials of the ousted Catalan government for rebellion, sedition and embezzlement and demanded to the judge in charge of the processing charges to issue a European arrest warrant (hereafter EAW) for Mr. Puigdemont and four other members of his former cabinet, after they failed to appear at the High Court hearing last Thursday.  The EAW was issued by the Spanish judge last week. EU law has thus been relied upon by Spanish authorities to respond to its internal crisis, because of the departure of several Catalan officials to Brussels, which constituted, at the outset at least, nothing more than a lawful exercise of their free movement rights within the Schengen area.

Mr. Puidgemont and the other people subject to a EAW presented themselves to Belgian authorities, which decided to release them upon several conditions including the prohibition to leave the Belgian territory. A Belgian Criminal Chamber has as of now two weeks to decide if they should be surrendered to Spain or not.

The Quasi-automaticity of the European Arrest Warrant System

According to Puidgemont’s Belgian lawyer, the former Catalan leader will agree to return in Spain provided that he will be guaranteed respect of his fundamental rights, including the right to an impartial and independent trial. He moreover underlined that Puidgemont will submit itself to Belgian judicial authorities which will have to assess whether or not these conditions are met.

The system of the EAW, however, entails a quasi-automaticity of the execution by requested authorities of any Member State. Indeed, because it relies upon the principle of mutual trust between Member States, requested authorities may not, save in exceptional circumstances, control the respect by the requesting State of fundamental values of the EU, including democracy and human rights. The Council Framework Decision 2002/584 of 13 June 2002, which establishes the EAW includes a limitative list of mandatory and optional grounds for refusal which does not include a general ground for refusal based on human rights protection (Articles 3 and 4). Indeed, only specific violations or risk of violations of fundamental freedoms justify the refusal to surrender, according to the Framework Decision. As far as the right to a fair trial is concerned, the Framework Decision does not include possibilities to rebut the presumption of the existence of fair proceedings in other Member States except when the EAW results from an in abstentia decision and only under certain conditions (Article 4a).  

A strong presumption of respect of EU values underlies EU criminal cooperation and the ECJ has, as of now, accepted its rebuttal on grounds of human right not included in the main text of the Framework Decision only where a serious and genuine risk of inhuman and degrading treatment existed for the convicted person in case of surrender (see the Aranyosi case, discussed here). In that respect, the lawyer of the other Catalan ministers who are already in jail has lodged a complaint for mistreatment of them, but more elements will be required to refuse the execution on the EAW on this basis.

Indeed, according to the Court of Justice, “the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention”. Moreover, the domestic judge must also “make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State” before refusing the execution of the EAW (Aranyosi, paras 89 and 92).

Furthermore, the possibility to refuse to surrender persons convicted for political offences – which is traditionally seen as being part of the international system of protection of refugees - has been removed from the Convention on Extradition between Member States of the European Union concluded in 1996 – which is the ancestor of the current EAW system - precisely because of Member States’ duty to trust their peers’ judicial system. Interestingly, the removal of this ground for refusal had been required by Spain when it faced difficulties to obtain the extradition of Basque independentists who were seeking for protection in Belgium. The Spanish government pleaded that the ground for refusal for political infractions constituted a hurdle to criminal cooperation within the EU which was at odds with the trust that Member States should express to each other (see E. Bribosia and A. Weyembergh, “Extradition et asile: vers un espace judiciaire européen?”, R.B.D.I., 1997, pp. 69 to 98).

In the current state of EU law, no option for refusal of execution of the EAW concerning Mr. Puidgemont seems thus to exist. It is noteworthy, however, that the EAW system may, as a whole, be suspended, when the procedure provided for by Article 7 TEU is initiated if there is a (clear risk of) violation of the values referred to in Article 2 TEU on which the Union is founded, including human rights, democracy and the rule of law. Although some people have called for the initiation of this mechanism, the reliance on Article 7 is very unlikely to happen politically: it needs at least a majority of four fifths at the Council just to issue a warning, and the substantive conditions of EU values’ violations are very high.

Nonetheless, Belgium has included in its transposing legislation (Federal Law of 19 December 2003 related to the EAW) an obligatory ground of refusal – whose validity regarding EU law can seriously be put into question -  if there are valid grounds for believing that its execution would have the effect of infringing the funda­mental rights of the person concerned, as enshrined by Article 6(2) of the TEU (Art. 4, 5°). Triggering this exception will however result, in my view, in a violation of EU law by the Belgian judge since the ECJ has several times ruled that the grounds for refusal included in the Framework Decision were exhaustive and that a Member State could not rely upon its national human rights protection to refuse the execution of a EAW which respects the conditions laid down in the Framework Decision (Melloni).  Another option for the Belgian judge will be to make a reference to the ECJ for a preliminary ruling in order to ask whether, in the case at hand, the presumption of conformity with EU fundamental rights in Spain may be put aside because of the specific situation of Mr. Puidgemont.

The Quasi-Exclusion of the Asylum Right for EU Citizens

Besides asking for the refusal of his surrender to Spanish authorities, Mr. Puidgmont could - at least theoretically – seek asylum in Belgium on the basis of the Refugee Convention of 1951, which defines as refugees people with a well-founded fear of persecution for (among other things) their political opinion (Article 1.A.2).

However, Spain also requested – besides the removal of the ground for refusal to surrender a person based on the political nature of the alleged crime in the European Extradition Convention of 1996 – the enactment of Protocol No 24, on asylum for nationals of Member States of the European Union, annexed to the Treaty of Amsterdam signed in 1997. This Protocol practically removes the right of EU citizens to seek asylum in other countries of the Union.

Founding itself on the purported trustful character of Member States’ political and judicial systems and the (presumed) high level of protection of fundamental rights in the EU, the Protocol states that all Member States “shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters” (Art. 1). Any application for asylum made by an EU citizen in another Member State shall therefore be declared inadmissible, except if the Member State of which the applicant is a national has decided to suspend temporarily the application of the European Convention on Human Rights in time of emergency (Article 15 of the ECHR; note that it’s not possible to suspend all provisions of the ECHR on this basis) or if this Member State has been subject to a decision based on Art. 7.1. or 7.2. TEU establishing the risk or the existence of a serious and persistent breach by the Member State of EU values referred to in Art. 2 TEU.

A Member State may also decide, unilaterally, to take an asylum demand into consideration at the double condition that it immediately informs the Council and that that the application shall be dealt with on the basis of the presumption that it is manifestly unfounded.  This last derogation has been invoked by Belgium which has adopted a declaration stating that it would proceed to an individual examination of each asylum demand of a EU citizen lodged with it. To comply with EU law, it must however consider each application manifestly unfounded rendering the burden of the proof very heavy for the EU citizen asylum seeker.  Belgian alien’s law provides for an accelerated procedure for asylum when the individual comes from an EU country (Article 57/6 2 of the Belgian Aliens Act) but statistics nevertheless show that about twenty asylum demands from EU citizens where declared founded in 2013 and 2014 by Belgian authorities.

The EU Brought on Stage…  

In both cases, the refusal to execute the EAW or the granting of an asylum right to Mr. Puidgemont would result from the consideration that the Spanish judiciary does not present the basic and essential qualities of independence and impartiality to adjudicate the case related to Catalan independence activists. This observation would likely result in a major diplomatic dispute between the two countries and, more widely, in the EU. Indeed, the consideration made by Belgium and/or the ECJ that Spain would not respect fundamental values of the EU in treating the case of Catalonia would jeopardize the essential principle of mutual trust between Member States, which is relied upon in criminal, asylum but also in civil judicial cooperation. The Spanish constitutional crisis could thereby potentially call into question the whole system of cooperation in the European Area of Freedom Security and Justice.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter I:5, chapter II:3

Photo credit: Pinterest

Homage to Catalonia? EU law and independence movements

Steve Peers

The recent vote supporting pro-independence parties in Catalonia has restarted discussion about the relationship between EU law and independence movements within Member States. I blogged last year on this issue in the run-up to the Scottish independence referendum, but now is a good time to revisit the topic. There are three linked issues: a) what happens if part of a Member State issues a unilateral declaration of independence (UDI), which seems to be a possible development in Catalonia; b) what happens if a newly independent State which was formerly part of a Member State seeks to remain in the EU; and c) whether the EU should adopt a policy on this issue, and if so what that policy should be. This is purely an assessment of the EU law implications; I am not commenting here on the (un)desirability of secession of Scotland, Catalonia or any other part of a Member State as such.  

The impact of a UDI

The possibility of a UDI in Catalonia distinguishes that situation clearly from the position in Scotland last year, since the referendum there was agreed with the UK government, which had promised to respect the outcome. However, it is conceivable that Scotland might in future contemplate a UDI, or that other parts of Member States would too. As we’ll see, it’s also necessary to distinguish between cases where the ‘parent’ Member State (for lack of a better term) is itself leaving the EU, and cases where it’s not.

The basic starting point of EU law is set out in Article 4 TEU: the EU must respect Member States' ‘national identities’, which are ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’. The EU must also respect Member States’ role ensuring their ‘territorial integrity’. There is no counter-balancing reference to self-determination at the sub-national level, and indeed regional government is described as an aspect of existing Member States’ national identities, not as a prototype for a separate demos.

It must follow that the EU has no legal authority to recognize a UDI until and unless the parent State has come to some arrangement with the seceding authorities to recognise their nascent statehood. The process and details of that arrangement are left entirely to national law. Doubtless independence-minded Catalans are disappointed that the Spanish government did not follow the British government’s lead and expressly contemplate potential independence; but it is entirely for the Spanish legal and political system to resolve what should happen on this point. Indeed, the rule works both ways: the EU should not interfere with the UK’s willingness to contemplate Scottish independence, even if some Member States are worried about their own independence movements. 

I’m assuming here that Catalonia would wish to stay in EU following a UDI, although in fact the reasoning on this first point applies equally to any self-proclaimed new state that would want to leave the EU after a UDI.  

There are, however, different considerations if a Member State is leaving the EU, and a part of that Member State seeks to break away and remain part of the EU. (This is a well-known possible development in Scotland following the upcoming ‘Brexit’ referendum). In that case, the withdrawing Member State will shortly lose the protection of EU law regarding its national identity and territorial integrity, and so the normal self-determination rule of public international law (whatever it means exactly) would apply. Legally speaking, it would therefore be open to the EU to recognise any UDI. But this would only be an option; politically, it is obviously possible that some Member States would not want the EU to recognise the UDI because of a risk that this would encourage separatism within their own State, despite the different legal framework.

Recognition of the new State

What happens if the parent Member State is willing (as the UK was last year) to accept the independence of part of its territory? This is mainly relevant if the new State wishes to remain in the EU; if it wishes to leave, then (for the following reasons, by analogy) it could do so without invoking the formal process of withdrawal set out in Article 50 TEU (discussed further here).

I’ll summarise my argument in the previous blog post regarding Scotland (although there are other points of view on these issues, which I refer to there). The new State does not become a Member State automatically, since the Member States are listed in the Treaties. A Treaty amendment is therefore necessary to add new Member States, even if they previously formed part of existing Member States. The process of adding new Member States is set out in Article 49 TEU on accession to the EU (requiring negotiation of an Accession Treaty between the old Member States and the incoming Member State). However, the accession process could be speeded up (given that EU law applies already in the new State), or the Accession Treaty could be applied provisionally. Or the existing Member States could circumvent the use of Article 49 by amending the Treaties via the usual process (set out in Article 48 TEU) to amend Article 49 to make a special case for accelerated EU membership for the new State.

As a matter of politics, of course, again some Member States might be unwilling to contemplate a new Member State in this scenario, or at least would be reluctant to speed up the membership process, for fear that doing so would encourage separatists in that State.

Does the EU need a policy on independence movements?

The EU has to address declarations of independence by breakaway (purported) States as part of its external relations policy, as regards places like Kosovo, East Timor and South Sudan. It doesn’t necessarily follow that it is wise for the EU to get involved in such issues within Member States. As discussed above, there is a legal rule that the EU cannot support secession in cases of UDI; but it would also be a bad policy move for the EU to get involved. Even where separation from the parent Member State is agreed, it would be unwise for the EU to get involved until the key domestic issues concerning independence have been agreed internally.

This is the quintessential example of an issue which should be left as a matter of principle entirely to each Member State to determine. Any legitimacy gain for the EU for supporting one side in the independence dispute would be lost as regards the other side in the argument. While separatists may wish the EU to help them, the EU should maintain its neutrality and leave it to them to win their argument (if they can) at the national level.

While EU law creates a legal bias (for the reasons described above) towards the status quo in independence situations, it would be necessary to develop a policy if secession from a Member State happened with its consent. In such cases, the EU should in principle respect both the willingness of the Member State to accept the secession from its territory (as an aspect of respect for national identity), and the view of the citizens in the new State to secede and join the EU (as an aspect of respect for democracy). As a consequence, it would be appropriate (although there would be no legal obligation) to facilitate EU entry for the new State (if it sought to become a Member State) as quickly and smoothly as possible. While it would be better for the EU to insist that this was a case-by-case policy, to avoid any perception that it was interfering in other Member States’ domestic politics by encouraging other separatists, they would likely be encouraged anyway. For that reason, despite the strong argument in principle that EU membership for newly independent parts of Member States should be fast-tracked, it’s entirely possible that it wouldn’t be a smooth process in practice.

Photo credit:  http://designseye.blogspot.co.uk/2013/06/happy-161-antoni-gaudi.html