5. Changing the distribution of central-regional competencies by means of judicial review
5.3. The jurisprudence of constitutional courts and their impact on the distribution of central-regional competencies
Strong constitutional courts: the German and Spanish constitutional courts In comparative political studies, the German Bundesverfassungsgericht (GCC) frequently emerges as the most powerful constitutional court in Western Europe (Lijphart 1999). However, in terms of clarifying and altering the central-regional distribution of competencies, I would argue that its influence has been smaller than that of the Spanish Constitutional Court (SCC).
As is the case for several Europen constitutional courts, the GCC engages inconcreteandabstractjudicial review (Stone Sweet 2000). Abstract review emerges when the federal or regional governments or at least a third of the members of the federal lower house believe that an adopted bill violates the constitution. In the absence of a concrete, pending case a procedure may be invoked immediately after the president, as head of state, has signed a bill into law. Abstract review can be important for clearing out federal-regional responsibilities (Laufer and Munch 1998).
For instance, recurrent examples of ‘abstract review cases’ have pertained to whether or not a federal law requires bicameral consent. The German constitution stipulates for which type of bills the consent of the Bundesrat is needed (so-called consent-bills). The federal second chamber can only cast a suspensory veto against all other bills (so called simple-bills). The GCC played an important role in clarifying the difference between both types of bills and hence in specifying the veto powers of the second chamber (and regional executive leaders) in federal law-making. The court determined that a federal bill which amends the non-consent obligatory part of a previ- ously adopted consent bill is not in itself consent obligatory (Laufer and Munch 1998). As a result, the number of disputes on the consent-obligatory character of a bill has sharply declined since the mid-1980s (Ziller and Oschatz 1998).
There is only mixed evidence to support Riker’s assumption that the court has favoured the centralization of German federalism. As was indicated above, until recently, the GCC has supported the centralization of concurrent leg- islative powers. The federal government only had to specify that its actions con- tributed to the objective of the ‘equalization of living conditions’ (Blair 1981).
However, in other respects, the court’s jurisprudence has not always supported the federal point of view. Some landmark rulings illustrate this.
In the Concordat Case(1957) the court ruled that the regions could not be bound by an agreement between the Pope and (Nazi) Germany (the federal state) on religious education. This would jeopardize the constitutionally guaranteed autonomy of the regions in primary and secondary education (Sawer 1969: 83). Using the Concordat as a means to intrude into an area of regional competence would violate the principle of ‘federal good faith’
(Bundestreue). Likewise, in the Television Case(1961) the court held that a fed- eral government’s power to regulate the technical aspects of broadcasting does not empower it to run its own broadcasting services (Sawer 1969: 84).
In this sense, the court safeguarded the role of the regions in education and in organizing the public media.
In more recent years the GCC has played a prominent role in oversee- ing the ‘political neutrality’ of fiscal equalization measures. The modalities of these measures are specified in the constitution and in federal legislation.
The GCC has regularly condemned the federal government for distributing regional resources on a political instead of an equitable basis. For instance, in 1987, the CDU-FDP federal government worked out a scheme that would have increased structural aid to attract private investments in most of the CDU-controlled regions. This scheme left Baden-Württemberg and a major- ity of the SPD regions in the cold. In the same year, the federal government allocated its oil extraction revenues to all the CDU but only to two SPD governed regions (Renzsch 1989: 343–5). The GCC forced the federal gov- ernment into reconsidering both measures. In 1998, the Constitutional Court forced the federal and regional governments into a more profound renegotiation of the entire fiscal equalization scheme by 2004 (Ziblatt 2002).
This time, party-political acrimony did not underpin the complaint. Rather, fiscally strong regions (Bavaria, Baden-Württemberg and North-Rhine Westphalia) felt punished by the excessive and arbitrary nature of the equalization arrangements (see Chapter 4).
The Spanish Constitutional Court (SCC) has played a very important role in carving out central and regional legislative competencies. The court’s prominence results from the difficulty of amending the Spanish constitution and from the overall ambiguity in which the distribution of central-regional competencies is spelled out. The court’s jurisprudence can affect central- regional issues in three regards. First, it decides on appeals against statutes of autonomy, organic laws, ordinary laws of national and regional legislatures and international treaties. Second, it decides on appeals for the protection of citizens’ rights and freedoms. These include the thorny issue of regional languages. Finally, it decides on appeals with regard to the catalogues of central and regional competencies (Agranoff and Gallarin 1997: 8).
Between 1981 and 1991, the central government appealed against nearly 10 per cent of all regional bills. In the same period, regional governments
appealed against more than 20 per cent of all central bills (Heywood 1995:
147; Stone Sweet 2000). This underlines the acrimonious character of inter- governmental relations. Many complaints are framed in an ongoing power struggle between the central and regional governments. Therefore, they take the form of ‘abstract review questions’. Apart from the Prime Minister, Parliamentary President, or 50 members of the central lower house or second chamber, abstract review procedures can be triggered off by the regional executives as well.
Of 143 abstract review cases that passed the court between 1981 and 1990, 42 per cent were introduced by regions against central legislation; 31 per cent originated with the central government, usually against legislation passed by the regions (Stone Sweet 2000: 65). Between 1981 and 1982 the national government even challenged half of the laws that were passed by the Catalan or Basque regional parliaments. Thereafter the share of regional laws that was challenged by the central government declined to approxi- mately 10 per cent. From the mid-1980s onwards, the regional governments increasingly challenged central laws. Catalonia and the Basque Country introduced two-thirds of the complaints. That share declined in the 1990s when some of the ethno-regionalist parties provided left- and right-wing central minority governments with the hoped-for legislative majorities. In return, the central government agreed to regional policy concessions (see Chapter 6).
Despite the centre’s monopoly in nominating the members of the Constitutional Court, the SCC has often ruled in favour of the regions. For instance, influenced by the failed military coup in 1981, the Conservative UCD government sought to scale back and harmonize the process of devo- lution. To that purpose it enacted with the support of the Social Democrats (PSOE), LOAPA (Ley Orgánica de Armonización del Proceso Autonómico).
This bill prescribed central government approval for legislative acts that were adopted by the regional assemblies and reduced some of the powers already granted to the (historic) regions (Agranoff and Ramos Gallarín 1997: 12).
The SCC’s decision to strike down more than a third of this important law may be considered its most important ruling to date. The court’s judgement clearly demonstrates that constitutional courts can and sometimes do act against the dominant central opinion. Although the ethno-regionalist par- ties fiercely opposed LOAPA, the bill had the full support of the two most important state-wide parties at the time. In its verdict, the court emphasized that ‘autonomy’ should mean that regions are entitled to make final deci- sions in certain competence areas.
In different rulings the SCC acknowledged the need of a coordinating central role in some policy areas that were first understood as being exclu- sively regional. Concrete examples are education, tourism, health care and economic development (Agranoff and Ramos Gallarín 1997: 13). In general, the SCC has sought to find a balance between two conflicting principles of
the constitution: the prinicipio dispositivo, according to which each region can assume different powers within the framework of the central constitution, and the principle of solidarity, which seems to call for a moderation of special autonomy rights which the historic communities are seeking to obtain.
The SCC has made some controversial rulings on the thorny issue of regional languages. Also in this respect it has been quite receptive to the viewpoint of the historic regions. For instance, the Spanish constitution requires that every Spaniard knows Castilian (Spanish) and it gives the central government the exclusive authority to issue diplomas. These compe- tencies seem to suggest that the centre should be able to impose Castilian as a language of instruction in education, possibly alongside a regional language.
However, the regions control other aspects of education policy and the con- stitution grants them the ‘power to promote instruction in the language of the autonomous community’. Therefore, the question was raised whether the Catalan government could legitimately expect its citizens to know Catalan by the end of their primary school studies, and to offer them all course subjects in Catalan thereafter. The Catalan government believed that such policies would not violate the constitution. However, it recognized that it would have to provide education in Castilian at primary school level, prescribe at least one compulsory course a term in Castilian, and exempt students who had been educated in a different region before entering sec- ondary school from the obligation to learn Catalan. To the astonishment of many Castilian-speakers, the SCC did not strike down the law. It appreciated the measures which the Catalan government had taken to guarantee the provision of education in Castilian. Castilian-speakers could at least start their education in their own native language and progressively acquire the Catalan language (Stone Sweet 2000: 107–9).
In recent years, the SCC adopted a more sceptical view towards the ‘asym- metric nature’ of the Spanish state. Perhaps the SCC may have been influ- enced by some pending European jurisprudence on the matter. The EU does not normally interfere in the domestic legal order of its member states.
However, the European Commission had repeatedly voiced its discontent with the exceptionally high level of fiscal autonomy of the Basque Country and Navarra. It considered their fiscal autonomy, particularly some aspects of the Basque corporation tax, as a violation of EU competition rules. In the late 1990s, the European Court of Justice (ECJ) was asked to consider this matter in a preliminary ruling procedure, following a dispute which the Spanish government had first introduced against the Basque Country in the Spanish court system. The Advocate General of the ECJ joined the European Commission in its view that some aspects of the Basque fiscal autonomy should be considered as illegal state aid. Usually, the ECJ follows the advice of the Advocate General in a subsequent ruling. When the Spanish gov- ernment realized that the ECJ would annul certain aspects of the Basque tax provisions, it withdrew the case. However, it used the opinion of the
Advocate General as a means to force the Basque authorities into conceding some of that autonomy (Bourne 2003: 611–12). Furthermore, the Spanish Constitutional Court may have looked less favourably upon the Basque tax asymmetry as a result. In a case brought to it by La Rioja after the ECJ dis- pute, the SCC no longer accepted the foralstatus of the Basque Country and Navarra as sufficient ground for accepting their special tax treatment.
Rather, their tax autonomy was seen as a potential violation of the equality principle, as stipulated in section 14 of the Spanish constitution. The judge- ment of the court could have major ramifications. It remains unclear whether on this basis any form of constitutional asymmetry could be con- sidered as a violation of the equality principle.
A constitutional court of increasing relevance?
The Belgian Constitutional Court
Compared with the SCC, the Belgian Constitutional Court (BCC) has played a much smaller role in delineating central-regional competencies. The lim- ited role of the BCC is owing to a number of factors.
First, the Regions and Communities contain extremely long and detailed catalogues of competencies. Thus, the BCC may have many issues to con- sider but its rulings only affect the allocation of competencies at the mar- gins. Second, the absence of concurrent legislation reduces the likelihood of judicial litigation. Third, until 2004, the regional executives were mostly made up from parties which also controlled the federal executive.
Consequently, many contentious issues could be kept out of the court.
Compromise solutions among the party and executive leaders of the federal and relevant regional governments prevented judicial litigation. The bicom- munal composition of the federal executive and the requirement that its decisions must be taken by consensus have also contributed to a compro- mise-building atmosphere. When the federal executive cannot find a com- promise, no decision is more likely than court action. The latter could threaten the survival of the government.
Despite these observations, the role of the Constitutional Court in deciding on federal-regional issues is not insignificant and may be on the rise. First, early on in its existence (the court was not established until 1984), the BCC devel- oped the notion of ‘monetary and economic union’ (MEU). MEU prevents the regional governments from engaging in activities which would undermine the
‘monetary and economic union’ of the country. The doctrine puts a straight- jacket on wide-scale regional taxation. Although extensive regional tax autonomy was not envisaged at the time, at present it features highly on the agenda of some Flemish parties. Second, the court proceedings also authorize a group of MPs to file complaints. This option has become increasingly popular with opposition parties. It is not unthinkable that federal opposition parties which govern at the regional level may use it as a means to increase the powers of the regions (or oppose federal government policy). Third, since 2004, the
practice whereby the same parties control the federal and regional governments no longer holds. This increases the need for intergovernmental relations. In the absence of a political solution, judicial litigation may follow.
The Austrian Constitutional Court: a weak counterforce against federal centralization
In the first nine years of its existence (1920–29), all members of the Austrian Constitutional Court (ACC) were appointed by the federal parliament.
Thereafter, the president and federal executive appointed half of its members each. Although the strengthened grip of the federal executive was meant to
‘depoliticize’ the court, it had the opposite effect. At least in Austria, the cen- tral control of the nomination process seems to have contributed to jurispru- dence which embraced legislative centralization (Welan 1988: 66).
An additional constraint on the autonomy of the ACC is the strong influ- ence of neo-corporatist actors in Austrian politics and society. When these professional associations (unions, employer’s representatives) assess federal or legislative federal drafts, they take the code of the ACC into consideration.
However, when they disagree, they persuade the central government and legislature to propose a constitutional amendment which renders the court’s vision obsolete (Welan 1988: 76). As we have seen, the Austrian constitution can be changed quite easily. In general, federal legislatures have moved swiftly to overturn decisions of the ACC which they (or the professional associations) dislike.
The ACC’s jurisprudence has underlined its ‘passive and reactionary’ char- acter. Most of the court’s rulings have run in parallel with the dominant (fed- eral) political tendencies of the day (Welan and Noll 1997: 171). In 1977, the then President of the Constitutional Court, Antoniolli, even resigned because, in his view, the court had become an ‘arm of the government’
(Obinger 2005). With regard to federalism, the ACC’s judgements have not served to curb the strongly centralized character of the Austrian federation or to protect the constitutional autonomy of the regions.7
One recent example to illustrate the latter is the so-called Volksgesetzgebungscase(referendum case). In this ruling, the ACC declared an article of the regional constitution of Vorarlberg void for breach of the fed- eral principle of constitutional homogeneity. The constitution of Vorarlberg would have authorized its population to demand the enactment, amend- ment or abolition of a regional law by way of a citizen’s petition (Gamper 2003). If supported by a fifth of the electorate, the regional legislature would be forced to call a binding referendum on the issue. The constitutional amendment would not have any direct implications for the federal govern- ment, as it only affected legislative politics in Vorarlberg. It would thus in no way upset the existing distribution of federal-regional competencies.
Yet, the ACC ruled that a citizen’s petition could not be reconciled with the principle of ‘constitutional homogeneity’. The ACC based its judgement
on some debates which preceded the making of the Constitutional Act of 1920. These made clear that ‘the federal constitutional lawmaker wanted to provide the referendum only to a limited extent’, favouring representative democracy instead. Therefore, the court concluded that ‘the repressing of the referendum in general does not merely form a federalconstitutional standard that binds the federation, but [is] a fundamental constitutional principle of representative democracy that binds the state constitutions as well’ (Court judgment, cited in [and translated by] Gamper 2003: 51; my italics). In this way, the judges constrained the constitutional autonomy of the regions beyond what is required from the federal constitution (Gamper 2003).
Two odd fellows: the Swiss Constitutional Court and the UK Privy Council
The Swiss Federal Court stands out among the group of constitutional courts in Western Europe. The Federal Court is constrained in its capacity as a constitutional court because it lacks the authority to rule on the constitu- tionality of federal legislation. It can check the compliance of federal admin- istrative acts and cantonal laws with the constitution, but judicial review offederal legislation is a matter of the people. When drafting the federal constitution, the Radical Liberals believed that judicial review of federal legislation by a constitutional court would strongly violate the ‘sovereignty of the people’ principle (Von Beyme 1988: 24). The Federal Court can test the compliance of all legislative acts, including federal laws, with the European Convention for Human Rights. Therefore, it is sometimes argued that a limited scope for judicial review of federal legislation, albeit indirectly, is now possible.
Swiss citizens can challenge any federal law (not necessarily on grounds of unconstitutionality) by collecting 50,000 signatures. Alternatively, 8 can- tonal authorities can trigger off a referendum on a disputed federal law. The first ever such referendum took place in May 2004. It resulted from the combined protest of 11 cantons against the federal government’s plans to harmonize fiscal legislation (Schmitt 2005: 372). Federal laws are upheld if they receive the consent of a majority of the people.
The Swiss public has been less willing to endorse federal legislative acts and decrees than constitutional amendments, although the opposite could be expected. Roughly 7 per cent of all bills or decrees which the federal par- liament passes are challenged by referendum. Almost half of these bills even- tually collapse, whereas the share of failed constitutional amendments is some 20 per cent lower. In contrast with constitutional amendments, con- tested laws must first be petitioned before they are actually put to a public vote. Hence, laws which the public is asked to vote against have already passed a first hurdle, whereas constitutional amendments must always be voted upon in a referendum, irrespective of whether or not they generate widespread opposition (Kobach 1994: 109).