Beijing Law Review, 2012, 3, 7-13 Published Online March 2012 ( 7
Territorial Checking and Balance: The Change of
the Spanish State Territorial Organization by
Subconstitutional Rules
Antoni Abati Ninet
ESADE Law School, Barcelona, Spain.
Received October 19th, 2011; revised December 15th, 2011; accepted January 9th, 2012.
We are in the midst of a strong revival of interest in the Subnational units (Autonomous Communities) within the
Autonomous Spanish State. Recent reforms of the Statute of Autonomy by certain autonomous regions have revealed
new mechanisms and new ways of interaction and communication between policy-statutory subnational units—within
the scope of the reforms of the Statute of Autonomy. This interaction is the assumption of a phenomenon called “hori-
zontal autonomism”. This concrete phenomeno n has not only reopened, with still more fo rce, the th eoretical and practi-
cal debate about the nature of the territorial organization of the Spanish State, but also demonstrates that the notion of
autonomy and the relations between national and sub-national units in Spain are permanently evolving. In addition, the
recent statutory amends have initiated a new evolutive stage of the hybrid state model without reforming the Constitu-
tion. The article focuses primarily on two elements of study. First, starting from a constitutional perspective the phe-
nomenon of what is called “horizontal autonomism” as the basis of the recent reforms of the Statutes of Autonomy
(subconstitutional rules). The second aspect is to analyze one of the main consequences and effects of this “horizontal
autonomism” in relation to the development of the territorial nature of the Spanish state. Concretely, we focus on how
the autonomous rules, are real sources of law for other autonomies, and, potentially, for the state.
Keywords: Territorial Checking and Balance; Constitutional Theoretical Constructions ; Horizontal Autonomism
1. Particularities of the Spanish Territorial
Since the formation of the liberal state in the first third of
the nineteenth century, Spain was organized in a uniform
manner and strongly centralist. This uniformity never
ended despite the great diversity that has always existed
in Spain. In fact, the desire for self-government by some
territorial communities remained equally strong in order
to preserve their identity. With the restoration of a de-
mocratic regime after the Franco dictatorship ended in
1975, Spain established a model for a state to recognize
the pluralism and diversity of its society. The result of
this recognition was woven into the Constitution and the
subsequent rules of a special constitutional nature (the
Statutes of Autonomy). This model is based on the in-
dissoluble unity of the Spanish nation and built from the
autonomy of the various nationalities and regions [1].
The devolved powers, or voluntary principle, guide the
whole process of autonomy—the territories wanting to
achieve autonomy regulate all decisive issues, not al-
ready regulated by the Constitution, con cerning the terri-
torial organization of the power of the State. Because of
this principle, the model of Autonomous Communities in
Spain shows a notable degree of heterogeneity, at least
potentially. The model allows d ifferent solutions for very
heteroge neous te rri tories.
Therefore, the Spanish Constitution does not contain a
particular model of territorial organization because it
does not expressly define one—it does not say whether
the Spanish State is federal, integrated, unitary or re-
gional. The Spanish State is not even defined as a “State
of Autonomous Communities.” The Constitution designed
a sui generic [2], an eclectic and ambiguous model,
which, however looked upon, is a model of a “com-
pound”, or “composite”, State that is politically decen-
tralized. From this perspective, the Spanish Autonomous
State was indefinitely hybrid in two specific ways:
1) The territorial shape of the state is constituted by
the combination of influences from different patterns of
theoretical forms of organization, i.e., it holds elements
of the unitary, regional, federal and confederal systems
[3]. For this reason, doctrine has frequently stemmed
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Territorial Checking and Balance: The Change of the Spanish State Territorial Organization by Subconstitutional Rules
from preconceptions about the decentralization system of
the Autonomous Communities, putting it in line with a
quasi-federal, federal-regional [2], unitary-federal, non-
institutional federalism [4], imperfect federalism, and
dualist federal, or co-operative, model. For a large ma-
jority, it acts as a heterogeneous and eclectic combination
of federal-regional and unitarist principles, which attempt
to establish it as a specific model of which the limits
would be found in the contents of the Statute of Auto-
nomy and in the remaining rules of the so-called “cons ti-
tutional bloc k.”
It can be argued that the model of Autonomous Com-
munities corresponds to certain very specific characteris-
tics. Indeed, the Spanish political system does not have
certain structures inherent in a concrete system of territo-
rial organization [3]. The lack of some of the typical in-
stitutions of cooperative federalism, and the lack of ex-
plicit recognition of the political system as a Spanish
federation, has generated a huge debate on the state
2) The Span ish Constitution does not d irectly code the
features of the organization of the state. That means that
the territorial organization of the state can be developed
in a flexible mann er within the framework of the general
principles established by the Constitution. As Villalón
Cruz noted, “It has begun a process of state transforma-
tion that is well known where it begins, but we would not
know where it ends [5]”. Consequently, in Spain there
exists an indefinitely open model that continues to evolve
by succession or sequence of stages because it is not
closed constitutionally. Currently, with the reform of the
autonomous statutes of Catalonia and Andalusia, a new
evolutionary stage of this model seems to be initiated.
Therefore, we would argue that there is not a constitu-
tional consolidation of the Spanish form of territorial
organization, and the new reforms demonstrate that. We
understand that this feature of the Spanish territorial or-
ganization model produces tensions between the different
intensities of theoretical influence and, ultimately, the
need to achieve a reasonable balance.
2. The Statutes of Autonomy and “Horizontal
The Spanish Constitution declares that the “Statute of
Autonomy” is the basic institutional norm of each Auto-
nomous Community, and “the State shall recognize and
protect them as an integral part of its legal system.” It is
the legal document that specifies the right to autonomy
and the powers of the Autonomous Community. Also,
the task of the Statute is to regulate the institu tions of the
Autonomous Community, its powers and competencies
assumed within the framework of the Constitution, the
basis for the transfer of the corresponding services to
those powers and competencies, and other issues.
The nature of the Statute is dual. The Statute is the law
of the Autonomous Community and also the law of the
state because the Statutes are Organic Laws of the State.
Therefore, the reform of statutes shall be in accordance
with the procedure established in them (and, sometimes,
with a referendum of the population of the Autonomous
Community) and shall, in any case, require the approval
of the Spanish Parliament by means of an organic law [5] .
It should be noted, too, that the Statute has a constitu-
tional function because it completes the constitution
(they form part of the “constitutional block”). The Sta-
tutes of Autonomy are the agreed upon rules by means of
which the right to autonomy of the Autonomous Com-
munities is provided; that is, they are the rules allowing
the nationalities and the regions to create their self-go-
vernment and to legally con stitute themselves as Autono-
mous Communities, putting into practice the form of
State sketched out in the Constitution [5]. Therefore,
with the extremely important constitutional function of
specifying the system of institutions and powers of the
Autonomous Communities within the notable degree of
openness and flexibility set out by the Constitution, the
Statutes of Autonomy provide some latitude over the
content of the autonomy and, at the same time, a poten-
tial element of singularity and heterogeneity in the sys-
tem as a whole.
In addition, the Statutes are subconstitutional norms.
The Constitution is a norm hierarchically superior to the
Statute. So, if the Statute operates in contrast to the Con-
stitution, this statutory content must be declared void
(and, therefore, unconstitutional). Also, if the Statute
operates in contrast to the constitutional block, the situa-
tion would remain the same as the previous one (where
part of the Statute violates the Constitution) and the out-
come would also entail the declaration of unconstitutio-
nality of the norm of the Statute.
A different case is the relationship between the Sta-
tutes and state laws—a state law cannot change a Statute.
In addition, the fact that the Statute has a material role in
completing the Constitution would mean that the Statute
is a valid parameter of state laws, to the extent that the
Statute predetermines the content of state law. Therefore,
in order to determine whether a subject is the response-
bility of the state or of Catalonia, we have to see what the
Statute and the Constitutio n provide.
Another matter is that the Statute goes against the
judgments of the Con stitutional Co urt. This contrad iction
between the Statute and the previous constitutional ru-
lings should not necessarily cause the unconstitutionality
of the Statute. Indeed, the Constitutional Court has the
ability to change criteria with respect to previous legal
positions, and, in any case, could save the Statute from
possible unconstitutionality.
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Territorial Checking and Balance: The Change of the Spanish State Territorial Organization by Subconstitutional Rules 9
In short, it is clear that the Statute cannot alter the
Constitution. However, to the extent that the constitu-
tional block is formed by the Constitution and the Statute
of Autonomy, reforming one of them alters, by definition,
the constitutional block, not just the Constitution. It is
perfectly possible that the reform of one or more Statutes
changes the function of the State of Autonomous Com-
munities with respect to several important elements be-
cause the definition of the State of Autonomous Com-
munities is not in the Constitution.
3. “Horizontal Autonomism”
Conceptualization of the Phenomenon
To avoid misunderstandings or ambiguous meanings, we
will say that the term “horizontal autonomism” refers to
the mechanisms of interaction and communication be-
tween the Autonomous Communities not only in a theo-
retical-normative sense, but also in a governmental and/
or practical manner [6]. In this sense, the State of the
Spanish Autonomous Communities contains not only
vertical relationships between the central government
and the regional governments (“vertical autonomism”),
but also relationships and interactions between the Auto-
nomous Communities themselves. These relationships
are also important in dealings between the different
spheres of power within the Spanish Autonomous State.
In this same context, the patterns of communication,
interaction, and influence between the Autonomous
Communities reflect the existence of what we have de-
fined as “horizontal autonomism”, affects the form of
territorial organization of the Spanish State, and will
likely establish the beginning of a new evolutionary stage
of this form of territorial or ganization.
Thus, the flow of information and the emulation be-
tween the Autonomous Communities and Regions has
show n that the lead ersh ip of some Auto nomous Commu-
nities, which implemented their capacity for innovation,
has succeeded in persuading other autonomous legisla-
tors to implement the same material innovations. In par-
ticular, the subject of this article, Catalonia, with the
ap proval of its new Statute of Autonomy, has assumed a
leading role within the Spanish State in adopting new
statutory content.1 For example, Catalonia initiated de-
velopment of a kind of bilateral relationship with the
State. This new understanding of the relations within the
State has been rapidly incorporated by other Autonomies
through their resp ective Statute reforms.
The theoretical explanation of “horizontal autono-
mism” indicates the existence of a diffusion process of
inter-autonomous influences through the emulation of the
content of the Statute of Autonomy [7]. This shows at
least two things: 1) That often th e new auton o mous leg is-
lation is virtually and literally copied between the Auto-
nomous Communities, an d 2) that th e au tono mous bodies
are continually observing each other as guides for action
in many areas, such as the legislature. In the latter case,
the process of competition and emulation among regional
governments would be a determining factor in the direc-
tion of the Autonomous Communities.
Once we have explained the theoretical concept of
“horizontal autonomism” in the next section, we are
going to analyze the ways this phenomenon is intertwined
with the promulgation of new Statutes of Autonomy,
which may have important consequences within the sys-
tem of law sources in Spain.
4. Statues of Autonomy as a Source of Law
The second purpose of this paper is to analyze one of the
main consequences of “horizontal auton omism”. We will
study how the recent reforms of the Statutes of Auto-
nomy became a source of law, and how they affect the
autonomous and con stitutional rules. The adoption of the
reforms to the Statute of Autonomy for Catalonia has
meant an enlargement of the competencies assumed by
this autonomous community. The assumption of more
competencies, particularly in the area of justice, has been
accomplished without the need to reform the content of
the Spanish Constitu tion.
The competencies extension established by the Statute
of Catalonia, and its legitimization, contain, as a factual
premise, a rereading of the attributions assumed by the
Autonomous Community of Catalonia, as well as a novel
reading of the Spanish Constitution. It is not an issue of
this article to participate in the open debate between
Catalonia and some of the Spanish political parties and
juridical institutions on the constitutionality of the
powers assumed by the new Statute of Autonomy. This
article will focus on the possibility o f reforming the con-
tents of the constitu tion with a novel interpretation of the
constitutional text. As we stated before, we will u se as an
example the third title of the Catalan Statute of Auto-
nomy, which regulates the competence of judicial power
and establishes the attributions to the Supreme Court of
Justice of Catalonia,2 the superior public prosecutor of
Catalonia,3 and the Council of Justice of Catalonia4—the
1See generally Organic Law 6/2006, on the Reform of the Statute o
Autonomy of Catalonia (1979), available at http://www.parlament-cat.
net/porteso/estatut/estatut_angles_100506.pdf (One of the major inno-
vations proposed by Organic Law 6/2006 is the new Declaration o
Rights within the Statute. It gives the citizens of Catalonia the rights
and obligations recognized in the Spanish Constitution. The citizens
also have the rights and obligations recognized in the rules referred to
in Article 4—each individual has the right to live in dignity, safety and
autonomy, free from exploitation, ill-treatment and all types of dis-
crimination, and each citizen has the right to freely develop his or her
ersonality and personal abilities. The rights of the citizens of Catalo-
nia, as established in the Estatut, may be extended to other individuals
under the terms established by law).
2Statute of Autonomy of Catalonia (2006), title III, art. 95, available at
3Id. at title III, art. 96.
d. at title III, art. 97.
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Territorial Checking and Balance: The Change of the Spanish State Territorial Organization by Subconstitutional Rules
competencies assumed by the Catalan Government (Ge-
neralitat d e Catalunya) over the administration of justice.
Article 109 of the third title establishes a subrogation
clause that states that the Catalan Government will exer-
cise all the functions an d competencies expressly granted
by the statute and all the faculties that the Organic Law
recognizes in the State Government in relation to the
administ rat i on of just i ce.
The establishment of the Council of Justice of Catalo-
nia has resulted in cries of unconstitutionality by the
Ombudsman, who alleges that this new institution (Con-
sell de justicia) would act without regard for the Judges
of the (Consejo General del Poder Judicial), creating a
sort of “alternative justice” under the exclusive control of
the Catalan Government. The Ombudsman upholds in his
recourse political arguments and administrative norms,
instead of fundamental principles, such as the principle
of proximity of justice to th e action. A fundamental prin-
ciple should prevail over a competent norm, and more
citizens should be made aware that the proximity of jus-
tice and the approach of the justice to the action are fun-
damental objectives marking Spanish law of judicial
power. An agile and nearby justice will lift the citizens’
confidence in the judicial system and will be truly sensi-
tive to the special peculiarities and singularities of a plu-
ral Spain. Likewise, the decentralization of the judicial
system could be a key factor in the necessary improve-
ment of the justice system in the Spanish State. The in-
troduction of more legal institutions with an active par-
ticipation in the judicial system would help relieve the
number of judicial matters brought to the State judicial
organs. The application of structural changes, and making
active participation of the Autonomous Communities
feasible, will overcome the aphorism applied to the states
that “slow justice is not justice,” because the justice will
stop being dramatically slow. Consequently, with the
independence of th e conflict competent, the interests and
rights of the citizens should predominate—that is to say,
the norm to apply should be the one that offers better
rights, or more rights, to the citizenship.
Contemplating this norm, we expect that the Spanish
constitutional syste m as a whole will be analogous to the
American state constitution’s new interpretative era. In
the United States, the late twentieth century state and
federal judges, along with legal academics, recognized
the potential of state con stitutions as an important source
of law. As James Gardner affirms that when state courts
merely “consult” similar decisions from other jurisdic-
tions, they are conventionally understood to be doing
something optional, and the consulting court typically
considers itself equally free to attend to or to ignore the
consulted opinions [8]. Consultation, in other words, is
not premised on a belief that judicial rulings from other
jurisdictions are in any sense binding within the consult-
ing jurisdiction [8]. Gardner states that the state courts
must do more than merely “consult” federal constitu-
tional law in the hope that su ch a ch ance en counter migh t
yield useful ideas or arguments [8]. We demand this kind
of effort from the Autonomous governments and institu-
tions to develop this kind of cooperative relationship
between the Autonomous Communities and the State. In
one sense, it is cooperative autonomism—a system of
participation of member States in a federation and col-
laboration amongst them all.
While in Spain the distribution of powers has deve-
loped rapidly, the participation by Autonomous Commu-
nities in the State through proper collaboration has not
progressed according to the parameters of federal state
institutions. Althou gh the Constitutiona l Court has stated
that collaboration is a duty of the State and the Autono-
mous Communities, the lack of cooperativ e institutio ns is
possibly the most prominent failure of the State of the
Autonomous Communities.
The Autonomous Communities are unable to contri-
bute to the formation of national public policies, due to
the lack of appropriate institutions. In Spain, the few
meetings between the different administrations rarely
create policies of joint government. Mostly, there are
bilateral negotiations between the central government
and a particular autonomous community in which each
party tries to get support for its own policies. It has been
argued that multilateral meetings with all the Autono-
mous Communities operate against the principle of
autonomy, since it involves giving up the political orient-
tation of each territory. Thus, the cooperation in Spain
tends to consist of an exchange of favors and is confined
to the moments in which the two political forces are
needed and can benefit each other.
All federal states have constitutional courts or supreme
courts in charge of settling disputes which may arise
among the different levels of government. These courts
have a monopoly (e.g., the constitutional courts in Spain
and other European states) or the last word (e.g., the
United States Supreme Courts) on the interpretation of
the constitution . In federal states, this power includes the
interpretation of the separation of powers between the
different territorial governments. This feature is one of
the tasks of constitutional courts. The federal systems
must ensure the neutrality of those courts respon sible for
resolving jurisdictional conflicts between different levels
of government. This, for example, has implications re-
garding the equal participation of the parties in the ap-
pointment and renewal of j ud ge s.
In Spain, the role of the Constitutional Court as a me-
diator in conflicts between different levels of gov ernment
is very important for, at least, two reasons. On the one
hand, the lack of institutions that facilitate communica-
tion and negotiation between the central power and the
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Territorial Checking and Balance: The Change of the Spanish State Territorial Organization by Subconstitutional Rules 11
regions leads to a greater number of conflicts than in
most federal systems. On the other hand, there are no
alternative mechanisms to solve these conflicts of com-
petence. The Constitutional Court is the only institution
capable of offering solutions.5 The proposal that we will
introduce consists of a broad understanding of the
Autonomous right as source of law, even at a national
level. In this sense, we consider it completely necessary
to introduce a culture of consultation of the autonomous
legislations as a possible source of law. Consistently, the
Catalan legislator shou ld be accustomed to working with
the Valencian or Balearic legislations, or vice versa.
Subsequently, we detail how the recent statute reforms
have been applied to other statutes without the need to
introduce a generic clause, like the one that establishes
the second additional disposition of the Statute of
Autonomy of the Valencian Country, a leveling clause,
known as the “Clausula Camps”, that states: “Any
modification of the laws of the state, with general cha-
racter and national level, involving an extension of the
powers of the Autonomous Communities shall apply to
the Valencian Country, considering extended its compe-
tences in those terms.
The influences of the Statutes of Autonomy amongst
the individual states can be seen in a comparative picture
of the statutory reforms of Catalonia, Andalucia and
Aragon. Thus, the Reform of the Statute of Autonomy of
Catalonia defines Catalonia as a nationality,6 the Andalu-
sian reform defines Andalusia as a national reality,7 and
the Aragonese reform (Organic law 5/2007, of April 20),
defines Aragon as a historic nationality. On these reforms,
we find similarities, on a variety of issues, such as the
singular aspects of the nationality, with references to the
regions own identity and historical rights, a catalogue of
rights and duties, and several novel elements—governing
principles, guarantees, institutions of self-government,
electoral systems, competency of higher courts of justice,
competence typology, and presence in the European in-
With this same logic, the reforms of the Autonomous
Statutes of the Valencian Country8 and of the Balearic
Islands, have been influenced, besides the issues already
mentioned, by other matters—the Catalan language as
the primary language, mechanisms of bilateral coopera-
tion, presence in the European Union, celebration of
covenants and international treaties, and economic rela-
tions with companies and international institutions. The
exposition of these issues is proof of the influences of,
and similarities between, the reforms of the Autonomous
5. Reform of the Spanish Territorial System
without a Constitutional Amendment
C in connection with the political structure of Spain, it
can be argued that Spain is similar to a federal state, but
it is not a classical federalism such as that of the United
States. However, according to both William H. Riker [9]
and Ivo D. Duchacek’s [10] minimalist definitions, Spain
could be considered a federal state. The Spanish consti-
tution and Statutes of Autonomy, though subconstitu-
tional laws, define the responsibilities between the state
and each individual Autonomous Community, and also
specify the element of unity and the element of autonomy
that characterizes the federal government. In addition,
with respect to power sharing, the power is not concen-
trated only in a central sphere, but also resides in some
territorial instances (legislative and executive), with the
exception of the judiciary, which in the Spanish case is
unique throughout the State territory (there are federa-
tions such as Austria, Canada or India where the judi-
ciary is not divided vertically).
One can argue that, from the point of view of the pro-
tection of the autonomy of the Autonomous Communi-
ties through judicial con trol, not its con stitu tion al gu aran-
tees, Spain is more federal than the United States, where
the protection of the powers of the states is very limited.
On the other hand, one can consider, in relation to the
distribution of powers, that in Spain there is no constitu-
tional guarantee of autonomy because the distribution of
powers is not in the Constitution, but in the constitutional
block, which means a lower guarantee of the autonomy
of the autonomous community. Also, the lack of partici-
pation of Autono mous Communities in the co nstitutional
reform process undermines their ability to protect them-
selves, since, theoretically, the central state could carry
out a unilateral reform to undermine their autonomy.
However, there is nothing in Elazar’s statement re-
quiring that a Senate be the only acceptable form of co-
operation [11]. If we examine comparative law, all the
federal states have a Senate (e.g., the United States,
Germany, Austria, Switzerland, Belgium, etc.) [12], but
its composition and functions are very heterogeneous—
the idea of a Senate differs among States. Therefore, this
feature would not be totally useful in affirming that Spain
is not a federal state. It may also be argued that, pre-
sumably, the creation of a truly territorial Sen ate in Spain
will not necessarily favor the operation of federalism in
lgunas Propuestas Sobre los Conflictos Positivos de
Competencia [Some Proposals on Positive Conflicts of Competence],
La Jurisdicción Constitucional en España. la Ley Orgánica del Tribu-
nal Constitucional: 1979-1994 [The Constitutional Court in Spain. The
Constitutional Organization Act: 19 79 - 19 9 4] , a t 1 93 (1 9 95 ) .
6Organic Law 6/2006, supra note 13, at art. I.
7Organic Law 2/2007, on Reform of the Statute of Autonomy for
Andalusia, Preamble (2007), available at http://www.juntadeandalucia.
8See generally Organic Law 1/2006, Statute of Autonomy of the
Valencian Community (2007), available at http://www.cortsvalen-
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Territorial Checking and Balance: The Change of the Spanish State Territorial Organization by Subconstitutional Rules
Spain when taking into account the opposition to this
system by the strongest Autonomous Communities.
Thus, the lack of a federal Senate in Spain could be
counteracted by the creation of alternative mechanisms
for bilateral and multilateral cooperation (currently,
though, there are no such alternative mechanisms). The
problem is that no two federal states are equal [13].
As Duchacek noted, there is “no accepted theory of
federalism. Nor is there agreement as to what, exactly,
federalism is. The term itself is unclear and controver-
sial.”9 So, it is impossible to say which institutions are
necessary to a federal state. Consequently, it is possible
to say that Spain has the structural (and territorial) mini-
mums to be a federal state, but not the functional level to
become a stable federalism given the weaknesses in its
model of coordination, collaboration and cooperation
between the central government and the Autonomous
Accordingly, Spain does not have institutions to fa-
cilitate the participation of the Autonomous Communi-
ties in the state powers. Elazar states, “The sense of per-
sonal independence characteristic of individual Span-
iards, which includes strong elements of self-reliance,
stands in the way of the centralization of power [14].”
One could argue that the Spanish State permits the self-
government of Autonomous Communities, but neglects
the shared government. What are the implications of re-
form? Will reform maintain, correct, or aggravate the
current situation?
The new institutions that facilitate cooperation be-
tween Catalonia and the State are not the traditional in-
struments of federal states. The new Catalan Statute of
Autonomy reinforces the bilateral negotiations. The
Catalan Statute does not attempt to correct the institu-
tional weaknesses of the State of Autonomies. Therefore,
the Catalan Statute further eradicates consideration of
Spain as a federal state.
The Catalan Statute seeks the clear independence of
power of Catalonia from the State and, at the same time,
it proposes mechanisms for bilateral and multilateral co-
operation between the State and the Autonomous Com-
munities—the Catalan Statute is more confederal than
federal. According to the Catalan Statute, all of the
Autonomous Communities do not have to participate
together in the process of state law-making (in a federal
Senate). The Catalan Statute establishes the framework
of negotiation in dualistic terms where each government
has the capacity to decide unilaterally its agreement or
rejection on any matter. It can be said that the intention
of the Catalan Statute is not the federalization of Spain,
but the establishment of a framewo rk of powers and rela-
tions between Catalonia and Spai n .
On the other hand, the Catalan Statute will be subject
to constitutional review by the Constitutional Court. It is
clear that the Catalan Statute cannot alter the Constitu-
tion. However, to the extent that the constitutional block
is formed by the Constitution and the Statute of Autono-
my (among other special state laws), reforming one of
them alters, by definition, the constitutional block. It is
perfectly possible that the reform of one or more statutes
changes not only the constitution of the State of Auto-
nomous Communities, but, in several important ways,
the functioning of the State of Autonomous Communi-
The importance of this issue lies in wh ether the reform
of Spain’s territorial model, as established in a subcons-
titutional norm, requires or not a constitutional amend-
ment. It is considered perfectly legiti mate that a statutory
reform changes certain aspects of the autonomic organi-
zation without necessarily involving a constitutional re-
form. This capacity (reforming the federal system with-
out constitutional reform) is quite unusual. In any other
federal state it could be done. The basis of the territorial
model is contained in the constitution and, certainly, re-
gional constitutions do not have the capacity to alter the
competitive model or intergovernmental relations be-
tween the federal sphere and state levels.
Ultimately, despite the very high degree of political
and financial decentralization in Spain, the future of the
Spanish state of the Autonomies is more uncertain than
federalism as it exists in more formally institutionalized
6. Conclusions
The perspective offered from the very beginning of this
paper is to present the debate of the latest Spanish statu-
tory reforms in a different angle. From this perspective,
the analysis carried out in the present article brings to
light the openness between the Autonomous Communi-
ties, the influence each Autonomous Community has on
the others, and, also, their fundamental differences as
recognized by the Spanish State.
Taking as a starting point the concept of “horizontal
autonomism,” the latest reforms of the Statutes of Auto-
nomy have been a source of other constitutional and
autonomous norms. As it has been expressed, the Spa-
nish State mechanisms identify more with a confederal
system than a federal cooperative system, as understood
in a traditional sense. Under these circumstances, the
main challenge will be to see how these new statutory
guidelines are going to be implemented, especially those
that are addressed to the general definition of the
Autonomous system. On the other hand, it remains to be
seen how the Constitutional Court appraises these new
guidelines. Although the future of the Spanish state fo rm
is uncertain, at the moment, one thing is clear: the new
functional changes, and the state of relations between
9Duchacek, supra note 16, at 189 (emphasis added).
Copyright © 2012 SciRes. BLR
Territorial Checking and Balance: The Change of the Spanish State Territorial Organization by Subconstitutional Rules
Copyright © 2012 SciRes. BLR
certain Autonomous Communities and the State, permit
the advancement of the idea of a multinational Spanish
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