January 14th 2016, Energías Renovables: “At the right place and the right time”

This article was originally published in Spanish at www.energias-renovables.com.

There are countries without Constitutional Court. An example of this is Holland, my birth country. In The Netherlands there are calls standing up for establishing one in order to achieve a higher control of constitutional legality of laws, and other ones saying this would not be convenient. Dutch judges of ordinary jurisdiction can directly assess the constitutionality and its compliance with international agreements of all the regulations that are not approved by the Parliament and the Senate, in other words laws. Regarding laws, they can only assess its compliance with international agreements directly. 

This system can be criticised at several points. For example putting too much in the good performance of the two chambers as far as the correct compliance of the constitutional procedures is concerned, but a more stringent implementation of the separation of powers can also be appreciated. A less academic and more practical effect is the length of the procedures, which is quite quickly in comparison with constitutionalist systems, as the judges of the ordinary jurisdiction are more used to base their sentences in the fundamental rights as included in the international agreements, and  to submit questions for a preliminary ruling of European Law.

It is right in this last point where I wish to insist with a view to the sentence of the Constitutional Court resolving the appel promoted by the Community of Murcia against the Royal Decree-Law 9/2013, and which we knew yesterday. Apart from being rejective, it is a succinct and not well argued sentence, to the point that the particular vote criticises this. Bearing in mind its delay, the lack of solid reasoning is even more reproachable.

But if we look at it from the point of view of the Supreme Court, it can also be considered that it arrives in a really appropriate moment. This, obviously, leaving apart the discomfort that the magistrates may feel because of the lack of courtesy and coordination by the Constitutional Court or by the Spanish Government, who in an unusual act of leaking, published a press note in order to distort the decision of the Supreme Court, warning about its intention raise out constitutional questions .. No, the timing is good for the quickness of the occurrences. I will explain this.

The Supreme Court has clearly come to the conclusion that there may be constitutionality problems, or said in a more concrete way: the Supreme believes that the last electricity reform may have infringed the principles of prohibition of retroactivity, legal security and legitimate confidence. What happens is that, as well as in The Netherlands, the Supreme Court also has to assess these infractions in ordinary jurisdiction, basing its response in the European Law version of these principles, making use of the procedure on judicial cooperation as defined in article 267 of the Treaty on the Functioning of the European Union and submitting a question for a preliminary ruling of European Law to the European Court of Justice in Luxembourg. In fact, our Supreme Court already warned us in the same decision, by stating: “All of this, notwithstanding future agreements about a possible submitting of a question for a preliminary ruling to the European Court of Justice”.

This for the timing: the word “future” in the publication date of this decision still seemed to be referring to a few years, when our Constitutional Court would have resolved these questions with extraordinary intellectual efforts and maximum celerity, which now seems could happen before this summer. In these  terms, all this fuss does not upset me, I prefer not to fight an already lost battle for another one, and to concentrate in another more important one, with a good disposition of the Supreme Court allowing us to enter this battle field, in both material and formal sense.