Spanish Constitution of 1978 (annotated)/Part VIII

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Spanish Constitution of 1978 (annotated)  (1978) 
Constituent Cortes
PART VIII.
Congreso de los Diputados pages 62-77

PART VIII

Territorial Organization of the State


CHAPTER 1

General Principles


Section 137

Territorial organization of State2, 140, 141, 143 CThe State is organised territorially into municipalities, provinces and the Self-governing Communities that may be constituted. All these bodies shall enjoy self-government for the management of their respective interests.


Section 138

Principle of solidarity between all regions2, 9.2, 130, 158.2 C1. The State guarantees the effective implementation of the principle of solidarity proclaimed in section 2 of the Constitution, by endeavouring to establish a fair and adequate economic balance between the different areas of the Spanish territory and taking into special consideration the circumstances pertaining to those which are islands.

No provileges2, 14, 130, 139 C2. Differences between Statutes of the different Self-governing Communities may in no case imply economic or social privileges.


Section 139

Equal rights and duties everywhere2, 14, 138,1. All Spaniards have the same rights and obligations in any part of the State territory.

Freedom of movement and settlement149.1.1, 149.1.18 C 2, 14, 19, 149.1.1, 6 and 10, 157.2 C2. No authority may adopt measures which directly or indirectly hinder freedom of movement and settlement of persons and free movement of goods throughout the Spanish territory.


CHAPTER 2

Local Government


Section 140

Autonomy for local authorities. Cities Councils137, 142, 148.1.2 149.1.18 CThe Constitution guarantees the autonomy of municipalities. These shall enjoy full legal entity. Their government and administration shall be vested in their Town Councils, consisting of Mayors and councillors. Councillors shall be elected by residents of the municipality by universal, equal, free, direct and secret suffrage, in the manner provided for by the law. The Mayors shall be elected by the councillors or by the residents. The law shall lay down the terms under which an open council of all residents may proceed.


Section 141

Provinces137.142, 148.1.21, 149.1.18, 154 C1. The province is a local entity, with its own legal entity, arising from the grouping of municipalities, and a territorial division designed to carry out the activities of the State. Any alteration of provincial boundaries must be approved by the Cortes Generales in an organic act.

2. The government and autonomous administration of the provinces shall be entrusted to Provincial Councils (Diputaciones) or other Corporations that must be representative in character.

Ohter territorial divisions152.3 C3. Groups of municipalities other than provinces may be formed.

Insular Councils4. In the archipelagos, each island shall also have its own administration in the form of Cabildo or Insular Council.


Section 142

Sufficiency of local finance31, 133.2, 137, 140, 141 CLocal treasuries must have sufficient funds available in order to perform the tasks assigned by law to the respective Corporations, and shall mainly be financed by their own taxation as well as by their share of State taxes and those of Self-governing Communities.


CHAPTER 3

Self-governing Communities


Section 143

Setting-up of Self-governing Communities2, 137, 144, 151 C1. In the exercise of the right to self-government recognised in section 2 of the Constitution, bordering provinces with common historic, cultural and economic characteristics, insular territories and provinces with a historic regional status may accede to self-government and form Self-governing Communities (Comunidades Autónomas) in conformity with the provisions contained in this Part and in the respective Statutes.

Normal initiative151, Trans. Prov. 1, 2, 3, 4 and 5 C2. The right to initiate the process towards self-government lies with all the Provincial Councils concerned or with the corresponding inter-island body and with two thirds of the municipalities whose population represents at least the majority of the electorate of each province or island. These requirements must be met within six months from the initial agreement reached to this aim by any of the local Corporations concerned.

3. If this initiative is not successful, it may be repeated only after five years have elapsed.


Section 144

Exceptional intervention by Parliament137, 143, Trans. Prov. 5 CThe Cortes Generales may, in the national interest, and by an organic act:

a) Authorise the setting-up of a Self-governing Community, where its territory does not exceed that of a province and does not possess the characteristics outlined in section 143, paragraph 1.

b) Authorise or grant, as the case may be, a Statute of Autonomy to territories which are not integrated into the provincial organization.

c) Take over the initiative of the local Corporations referred to in section 143, paragraph 2.


Section 145

No federation of Communities153, 155 C1. Under no circumstances shall a federation of Self-governing Communities be allowed.

Cooperation agreements74.2 C
166 and Final Prov. 3 SO
2. Statutes of Autonomy may provide for the circumstances, requirements and terms under which Self-governing Communities may reach agreements among themselves for the management and rendering of services in matters pertaining to them, as well as for the nature and effects of the corresponding notification to be sent to the Cortes Generales. In all other cases, cooperation agreements among Self-governing Communities shall require authorization by the Cortes Generales.


Section 146

Normal drafting of regional Statutes1, 4, 3.2, 151, Trans. Prov. 2 and 6 C 136 SOThe draft Statute of Autonomy shall be drawn up by an assembly consisting of members of the Provincial Council or inter-island body of the provinces concerned, and the respective Members of Congress and Senators elected in them, and shall be sent to the Cortes Generales for its drafting as an Act.


Section 147

81 CStatutes of Devolution1. Within the terms of the present Constitution, Statutes of Autonomy shall be the basic institutional rule of each Self-governing Community and the State shall recognize and protect them as an integral part of its legal system.

Contents of Statutes148, 149, 150.3, 152 C2. The Statutes of Autonomy must contain:

a) The name of the Community which best corresponds to its historic identity.

b) Its territorial boundaries.

c) The name, organization and seat of its own autonomous institutions.

d) The powers assumed within the framework laid down by the Constitution and the basic rules for the transfer of the corresponding services.

Amendment of Statutes81, 152.2 C 145 SO3. Amendment of Statutes of Autonomy shall conform to the procedure established therein and shall in any case require approval of the Cortes Generales through an organic act.


Section 148

Matters devolved to self-governing Communities147.2, 149, 150 C1. The Self-governing Communities may assume competences over the following matters:

1. Organization of their institutions of self-government.

2. Changes in municipal boundaries within their territory and, in general, functions appertaining to the State Administration regarding local Corporations, whose transfer may be authorised by legislation on local governement.

3. Town and country planning and housing.

4. Public works of interest to the Self-governing Community, within its own territory.

5. Railways and roads whose routes lie exclusively within the territory of the Self-governing Community and transport by the above means or by cable fulfilling the same conditions.

6. Ports of haven, recreational ports and airports and, in general, those which are not engaged in commercial activities.

7. Agriculture and livestock raising, in accordance with general economic planning.

8. Woodlands and forestry.

9. Management of environmental protection.

10. Planning, construction and exploitation of hydraulic projects, canals and irrigation of interest to the Self-governing Community; mineral and thermal waters.

11. Inland water fishing, shellfish industry and fishfarming, hunting and river fishing.

12. Local fairs.

13. Promotion of economic development of the Self-governing Community within the objectives set by national economic policy.

14. Handicrafts.

15. Museums, libraries and music conservatories of interest to the Self-governing Community.

16. The Self-governing Community's monuments of interest.

17. The promotion of culture and research and, where applicable, the teaching of the Self-governing Community's language.

18. The promotion and planning of tourism within its territorial area.

19. The promotion of sports and the proper use of leisure.

20. Social assistance.

21. Health and hygiene.

22. The supervision and protection of its buildings and installations. Coordination and other powers relating to local police forces under the terms to be laid down by an organic act.

Extension of devolution147.3, 151.1 C
145 SO
2. After five years, the Self-governing Communities may, by amendment of their Statutes of Autonomy, progressively enlarge their powers within the framework laid down in section 149.


Section 149

Metters of exclusive State jurisdiction147.2, 48.150 C1. The State shall have exclusive competence over the following matters:

1. Regulation of basic conditions guaranteeing the equality of all Spaniards in the exercise of their rights and in the fulfilment of their constitutional duties.

2. Nationality, immigration, emigration, status of aliens, and right of asylum.

3. International relations.

4. Defence and the Armed Forces.

5. Administration of Justice.

6. Commercial, criminal and penitentiary legislation; procedural legislation, without prejudice to the necessary specialities in these fields arising from the peculiar features of the substantive law of the Self-governing Communities.

7. Labour legislation, without prejudice to its execution by bodies of the Self-governing Communities.

8. Civil legislation, without prejudice to the preservation, modification and development by the Self-governing Communities of their civil law, or special rights and traditional charters (fueros), whenever these exist. In any event, rules for the application and effectiveness of legal provisions, civil relations arising from the forms of marriage, keeping of records and drawing up to public instruments, bases of contractual liability, rules for resolving conflicts of law and determination of the sources of law in conformity, in this last case, with the rules of traditional charters (fueros) or special laws.

9. Legislation on copyright and industrial property.

10. Customs and tariff regulations; foreign trade.

11. Monetary system: foreign currency, exchange and convertibility; bases for the regulations concerning credit, banking and insurance.

12. Legislation on weights and measures and determination of the official time.

13. Basic rules and coordination of general economic planning.

14. General financial affairs and State Debt.

15. Promotion and general coordination of scientific and technical research.

16. External health measures; basic conditions and general coordination of health matters; legislation on pharmaceutical products.

17. Basic legislation and financial system of Social Security, without prejudice to implementation of its services by the Self-governing Communities.

18. Basic rules of the legal system of Public Administrations and the status of their officials which shall, in any case, guarantee that all persons under said administrations will receive equal treatment; the common administrative procedure, without prejudice to the special features of the Self-governing Communities' own organizations; legislation on compulsory expropriation; basic legislation on contracts and administrative concessions and the system of liability of all Public Administrations.

19. Sea fishing, without prejudice to the powers which, in regulations governing this sector, may be vested to the Self-governing Communities.

20. Merchant navy and registering of ships; lighting of coasts and signals at sea; generalinterest ports; general-interest airports; control of the air space, air traffic and transport; meteorological services and aircraft registration.

21. Railways and land transport crossing through the territory of more than one Self-governing Community; general system of communications; motor vehicle traffic; Post Office services and telecommunications; air and underwater cables and radio communications.

22. Legislation, regulation and concession of hydraulic resources and development where the water-streams flow through more than one Self-governing Community, and authorization for hydro-electrical power plants whenever their operation affects other Communities or the lines of energy transportation are extended over other Communities.

23. Basic legislation on environmental protection, without prejudice to powers of the Self-governing Communities to take additional protective measures; basic legislation on woodlands, forestry and cattle trails.

24. Public works of general benefit or whose execution affects more than one Selfgoverning Community.

25. Basic regulation of mining and energy.

26. Manufacturing, sale, possession and use of arms and explosives.

27. Basic rules relating to organization of the press, radio and television and, in general, all mass-communications media without prejudice to powers vested in the Self-governing Communities for their development and implementation.

28. Protection of Spain's cultural and artistic heritage and national monuments against exportation and spoliation; museums, libraries, and archives belonging to the State, without prejudice to their management by the Self-governing Communities.

29. Public safety, without prejudice to the possibility of Self-governing Communities creating police forces, as provided for in their respective Statutes of Autonomy and within the framework to be laid down by an organic act.

30. Regulation of the requirements for obtention, issue and standardization of academic degrees and professional qualifications and basic rules for implementation of section 27 of the Constitution, in order to guarantee the fulfilment of the duties of public authorities in this matter.

31. Statistics for State purposes.

32. Authorization of popular consultations through the holding of referendums.

Culture promotion and coordination a duty of the State2. Without prejudice to the competences that may be assumed by the Self-governing Communities, the State shall consider the promotion of culture a duty and an essential function and shall facilitate cultural communication among the Self-governing Communities, in cooperation with them.

Rules for distribution of jurisdiction3. Matters not expressly assigned to the State by this Constitution may fall under the jurisdiction of the Self-governing Communities by virtue of their Statutes of Autonomy. Jurisdiction on matters not claimed by Statutes of Autonomy shall fall with the State, Predominance and suppletory value of State lawwhose laws shall prevail, in case of conflict, over those of the Self-governing Communities regarding all matters in which exclusive jurisdiction has not been conferred upon the latter. State law shall in any case be suppletory of that of the Self-governing Communities.


Section 150

Framework Acts1, 4, 7.2 148, 149, 153 C
167 SO
1. The Cortes Generales, in matters of State jurisdiction, may confer upon all or any of the Self-governing Communities the power to pass legislation for themselves within the framework of the principles, bases and guidelines laid down by a State act. Without prejudice to the jurisdiction of the Courts, each enabling act shall make provision for the method of supervision by the Cortes Generales over the Communities' legislation.

Transfer or delegation Acts81, 147.2, 148, 149, 153 C2. The State may transfer or delegate to the Self-governing Communities, through an organic act, some of its powers which by their very nature can be transferred or delegated. The law shall, in each case, provide for the appropriate transfer of financial means, as well as specify the forms of control to be retained by the State.

Harmonization Acts2, 138, 139, 155 C3. The State may enact laws laying down the necessary principles for harmonizing the rulemaking provisions of the Self-governing Communities, even in the case of matters over which jurisdiction has been vested to the latter, where this is necessary in the general interest. 168 SOIt is incumbent upon the Cortes Generales, by overall majority of the members of each House, to evaluate this necessity.


Section 151

Special initiative by Self-governing Communities92.3, 143.2, 148.2, Trans. Prov. 1 and 2 C1. It shall not be necessary to wait for the five-year period referred to in section 148, subsection 2, to elapse when the initiative for the autonomy process is agreed upon within the time limit specified in section 143, subsection 2, not only by the corresponding Provincial Councils or inter-island bodies but also by three-quarters of the municipalities of each province concerned, representing at least the majority of the electorate of each one, and said initiative is ratified in a referendum by the overall majority of electors in each province, under the terms to be laid down by an organic act.

Special procedure for drafting of92.3, 146, Trans. Prov. 2 C 137-144 SO2. In the case referred to in the foregoing paragraph, procedure for drafting the Statute of Autonomy shall be as follows:

Statute of Devolutioni) The Government shall convene all Members of Congress and Senators elected in the constituencies of the territory seeking self-government, in order that they may set themselves up as an Assembly for the sole purpose of drawing up a Statute of Autonomy, to be adopted by the overall majority of its members.

ii) Once the draft Statute has been passed by the Parliamentarians' Assembly, it is to be sent to the Constitutional Committee of the Congress which shall examine it within two months with the cooperation and assistance of a delegation from the Assembly which has proposed it, in order to decide by common agreement upon its final form.

iii) If such agreement is reached, the resulting text shall be submitted in a referendum to the electorate in the provinces within the territory to be covered by the proposed Statute.

iv) If the draft Statute is approved in each province by the majority of validly cast votes, it shall be referred to the Cortes Generales. Each House, in plenary sitting, shall decide upon the text by means of a vote of ratification. Once the Statute has been passed, the King shall give his assent and promulgate it as an act.

v) If the agreement referred to in paragraph ii) of this subsection is not reached, the legislative process for the draft Statute in the Cortes Generales shall be the same as that for a bill. The text passed by the latter shall be submitted to a referendum of the electorate of the provinces within the territory to be covered by the draft Statute. In the event that it is approved by the majority of validly cast votes in each province, it shall be promulgated as provided in the foregoing paragraph.

3. In the cases described in paragraphs iv) and v) of the foregoing subsection, failure by one or several of the provinces to ratify the draft Statute shall not prevent constitution of the remaining provinces into a Self-governing Community in the manner to be provided for by the organic act described in subsection 1 of this section.


Section 152

Content of Statutes provided for in Section 151147.2, 151, 148, 149 C1. In the case of Statutes passed by means of the procedure referred to in the foregoing section, the institutional self-government organization shall be based on a Legislative Assembly elected by universal suffrage under a system of proportional representation which shall also assure the representation of the various areas of the territory; an Executive Council with executive and administrative functions and a President elected by the Assembly among its members and appointed by the King. The President shall assume leadership of the Executive Council, the supreme representation of the Community and the State's ordinary representation in the latter. The President and the members of the Executive Council shall be politically accountable to the Assembly.

117, 122.1, 123, 149.1.5, Add. Prov. 4 CA High Court of Justice, without prejudice to the jurisdiction of the Supreme Court, shall be the head of Judicial Power in the territory of the Self-governing Community. The Statutes of Autonomy may make provision for the circumstances and the manner in which the Community is to take part in the setting-up of the judicial districts of the territory. Provided that they must conform to the provisions of the Organic Act on the Judicial Power and to the principles of unity and independence of the judicial power.

Without prejudice to the provisions of section 123, successive proceedings, if any, shall be held before judicial bodies located in the same territory of the Self-governing Community in which the Court having jurisdiction in the first instance is located.

Reforms of Statutes provided for in Section 15191, 92.3, 147.3, C 145 SO2. Once the Statutes have received the Royal Assent and been promulgated, they may be amended only by the procedure provided for therein and a referendum of registered electors in the Self-governing Community.

Special territorial divisions may be contemplated by Statutes141.3, 147.2 C3. By grouping bordering municipalities together, the Statutes may set up their own territorial constituencies which shall enjoy full legal entity.


Section 153

Control of Self-governing CommunitiesControl over the bodies of the Self-governing Communities shall be exercised by:

161 Ca) The Constitutional Court, in matters pertaining to the constitutionality of their regulatory provisions having the force of law.

107, 150.2 Cb) The Government, after the handing down by the Council of State of its opinion, regarding the exercise of delegated functions referred to in section 150, subsection 2.

106, 117 Cc) Jurisdictional bodies of administrative litigation with regard to autonomic administration and its regulations.

136 Cd) The Auditing Court, with regard to financial and budgetary matters.


Section 154

Government's Delegate141.1, 153 CA delegate appointed by the Government shall be responsible for the State administration in the territory of each Self-governing Community and shall coordinate it, when necessary, with the Community's own administration.


Section 155

Execution by Government of Community's obligations in case of non-compliance2, 150.3, 153 C1. If a Self-governing Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the Government, after having lodged a complaint with the President of the Self-governing Community and failed to receive satisfaction therefore, may, following approval granted by the overall majority of the Senate, take all measures necessary to compel the Community to meet said obligations, or to protect the abovementioned general interest.

2. With a view to implementing the measures provided for in the foregoing paragraph, the Government may issue instructions to all the authorities of the Self-governing Communities.


Section 156

Financial devolution of Communities2, 31, 128, 133, 138, 143.1.13 14, 157, 158 C1. The Self-governing Communities shall enjoy financial autonomy for the development and exercise of their powers, in conformity with the principles of coordination with the State Treasury and solidarity among all Spaniards.

Cooperation with the State in tax matters2. The Self-governing Communities may act as delegates or agents of the State for the collection, management and assessment of the latter's tax resources, in conformity with the law and their Statutes.


Section 157

Resources of Self-governing Communities31, 133.2, 156, 158 C1. The resources of the Self-governing Communities shall consist of:

a) Taxes wholly or partially made over to them by the State; surcharges on State taxes and other shares in State revenue.

b) Their own taxes, rates and special levies.

c) Transfers from an inter-territorial compensation fund and other allocations to be charged to the State Budget.

d) Revenues accruing from their property and private law income.

e) Interest from loan operations.

Limitations139.2 C2. The Self-governing Communities may under no circumstances introduce measures to raise taxes on property located outside their territory or likely to hinder the free movement of goods or services.

Conflicts with the State. Cooperation with the State.81 C3. Exercise of the financial powers set out in subsection 1 above, rules for settling the conflicts which may arise, and possible forms of financial cooperation between the Self-governing Communities and the State may be laid down by an organic act.


Section 158

Appropriations in the State Budget134, 147.2, 156, 157 C1. An allocation may be made in the State Budget to the Self-governing Communities in proportion to the amount of State services and activities for which they have assumed responsibility and to guarantee a minimum level of basic public services throughout Spanish territory.

Interterritorial Clearing Fund2, 742, 138, 156, 157 C
Final Prov. 3 SO
2. With the aim of redressing interterritorial economic imbalances and implementing the principle of solidarity, a compensation fund shall be set up for investment expenditure, the resources of which shall be distributed by the Cortes Generales among the Self-governing Communities and provinces, as the case may be.