Next stop, Strasbourg.

We have found ourselves in a situation of Catch 22, a term coined by the author Joseph Heller in his novel, with the same name, based during the Second World War. The phrase alludes to an absurd situation in which a combination of rules will always bring you back to the same situation.  In the case of the Heller’s soldiers, no one could return home: the Italians were bombing the Nazis from positions that bordered the insane and yet the pilots’ accusations of madness went unheard. According to their doctors, the soldiers were perfectly sane and rational, therefore what they were saying could not be madness. Only the insane pilots did not seek professional medical assistance, simply continuing to bomb as instructed without reason – precisely because they did not see it as madness. The result: no one was sent home. 

In Spain the so called incident  of nullity is a requisite sine qua non, according to established doctrine, to gain access to the Constitutional Court, in Spain. If you do not present it as a last measure in your procedure, the Constitutional Court will tell you that you have not completed the ordinary proceeding and therefore you do not have access to their Court.  In our case the Constitutional Court has turned the tables and created their own Catch 22, this time to send us all home, no matter what.  They did that by rejecting our constitutional appeal against the  Audiencia Nacional (a Spanish administrative court)  dismissal of our objection to the provisional settlements made in 2011, in which were our way recur RDL 14/2010. Their reasoning is both fascinating and absurd, an opinion that is also shared by our different consultants, including the Professor Dr. Pablo Morenilla, ex-attorney for the Constitutional Court, who prepared and signed this appeal with me.  You can access the demand´s full text once again through this link to verify that we have presented a claim written with the maximum professional and academic accuracy, and one that is perfectly admissible according to all of the Constitutional Court’s criteria.

HOWEVER: According to the  Constitutional Court, our incident of nullity was not precedent, a claim that is not coherent either with the very precedents of the Constitutional Court, nor the Audiencia Nacional, who have recognized the incident and granted us audience with the State Attorney. To drive the nail further in, as it were, the Constitutional Court go on to state that our appeal has missed the deadline for entry; according to them the dates for handing in the documents should have been calculated according to date of the court order that created the incident of nullity.

It is quite clear from this that the Constitutional Court had no intention whatsoever of accepting our demand, despite our absolute adherence to all regulations necessary.  They have once again created a way to avoid us getting access to the Spanish Justice system in a reasonable amount of time.  We published a post on our blog recently, commenting on how we thought that a fast resolution to our constitutional ambitions would not be favorable; a hurried job is a badly done job. 

Our clients had zero expectations regarding the response we would get from the Constitutional Court, but we did not. We had reserved a shred of hope that the Constitutional Court would play a fair game and at least admit us in, and certainly not belittle us with feeble excuses. I know that this is a sweeping and polemic statement, but it reflects the current public opinion in Spain on access to justice. Why are these courts so prone not to enter into the substantial part of the conflict? 

So how does this affect us and what are the next steps? 

This constitutional case did not affect the procedure for claims made on RDL 14/2010 from the very beginning, for practical reasons. Judgment of our challenge of CNE´s Circular 3/2011, the lawsuit for which was presented on the 11th February, and our appeal against the final 2011 settlements for 2011 that we will start in 2014, are both instances where we will have had our effects before judgment by the Constitutional Court. We have always maintained that their lodgings served a declaratory purpose, waiting on reserve for a rainy day. We have insisted on challenging the admissibility of provisional settlements precisely to avoid the possibility that in the future we were faced with it. Now that future has already materialized: we can only challenge RDL 2/2013 through their final settlements, unless the next steps in our legal strategy produce results before.

Our next steps go beyond the Pyrenees: Strasbourg, Brussels and Luxembourg.

Next week we also have a delivery date for the third part of the complaint presented in full on December 4 during the meeting held with Marie Donnelly and her team, from DG Energy of the European Commission.  This is the complaint alleging infringement of Article 267 TFEU, an article that obliges Spain to promote compliance with an obligation to promote a preliminary ruling in Luxembourg through its state lawyers and prosecutors. The dossier was complete, because this obligation was already breached as we didn’t get access to the European justice after having exhausted the ordinary proceeding , but now this is reinforced by the outright rejection by the CC based on an argument that can be described as the apotheosis of the Spanish judicial formalism, all in line with the case C403/11. The European Commission, once the infringement proceedings according to Article 258 TFUE have been launched, may bring the complaint before the European Union´s Court of Justice in Luxembourg.

We will be preparing the complaint that we will hand in to the European Human Rights Tribunal in Strasbourg, due by the 5th of August 2013. 

You can take a look at the resolution here.