Spain

V - 136(3) TFEU

At the 16/17 December 2010 European Council a political decision was taken to amend the Treaties through the simplified revision procedure of article 48(6) TFEU. On March 25, 2011 the European Council adopted the legal decision to amend article 136 TFEU by adding a new third paragraph: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”  
The process of approval of this decision by the member states in accordance with their respective constitutional requirements as prescribed by article 48(6) has been completed and the amendment has entered into force on 1 May 2013.

Negotiation
V.1
What political/legal difficulties
did Spain encounter in the negotiation of the amendment of article 136 TFEU?

At the 16-17 December 2010 European Council, the President of the Spanish Government José Luis Rodriguez Zapatero made the decision, along with the other members of the European Council and following the proposal by the Belgian Government, to amend the Treaties through the simplified revision procedure of article 48(6) TFEU. During the weeks preceding this meeting, López Garrido (Secretary of State for the EU) appeared before the Parliamentary Commission for the EU in order to explain and discuss the position of the Spanish Government thereof[1]. According to López Garrido, it was Germany who insisted on the reform of article 136 TFEU. While agreeing on the reform of the Treaty, Spain defended a modification as limited as possible, and one that did not entail further transfers of powers vis-à-vis the EU. Perestelo Rodríguez from Coalición Canaria supported this position in the understanding that the simplified procedure could not be used to make substantial modifications in a text that had been approved by the Spanish citizenry in referendum[2]. Sabaté Borràs from Partido Socialista de Cataluña further added that a new referendum would not be advisable in a context of crisis and euroscepticism.

On 22 December 2010 President Zapatero appeared before the Congreso plenary session in order to inform and explain about the European Council meeting held in Brussels a few days before (16-17 December 2010).[3] In response to Mr Zapatero’s speech, President of the by then opposition party (Partido Popular)Mr Mariano Rajoy explicitly expressed his party’s firm commitment and support of the decision amending Article 136 TFEU and in taking any necessary measures for maintaining the financial stability in the euro-zone. Following this line, Mr Josep Sánchez i Llibre, as spokesman of the Catalan group Covergència i Unió, and Mr Gervasio Erkoreka for the Basque Nationalist Party (PNV–Partido Nacionalista Vasco), also unambiguously celebrated the resolution taken by the European Council of amending Article 136 TFUE, only regretting that this was not taken before. The decision only took some criticism from minority groups at the camera.

We can conclude that the negotiation of the amendment of article 136 TFEU did not encounter relevant political/legal difficulties during its discussion at the Spanish Parliament.

Approval
V.2
How has the 136 TFEU Treaty amendment been approved in Spain and on what legal basis/argumentation?

The amendment of Article 136 TFEU was dealt under the scope of authorization of international treaties and covenants pursuant article 94.1 of the Spanish Constitution (CE), which states that the provision of consent of the State to enter any commitment by means of a Treaty shall require the prior authorization of the Spanish Parliament.

As a first step for its ratification, the Comisión de Asuntos Exteriores(Foreign Affairs Committee of the Congress)was commanded a ruling on the Decision to amend Article 136(3) TFEU[4] and its publication on the Boletín Oficial de las Cortes Generales(Official Journal of the Parliament) on 2March, 2012.[5]  Consequently, the Decision was submitted to discussion and ratification in both chambers of the Cortes Generales (Congreso and Senado).At the Congreso, the amendment of Article 136 TFEU (together with the treaty establishing the ESM[6]) was approved by 292 votes in favour, 17 against and 6 abstentions[7]. At the Senado, it was approved by 234 votes in favour and 1 against[8], The Treaty amendment was ratified by the Spanish Parliament on 15 June 2012.

Ratification difficulties  
V.3
What political/legal difficulties
did Spain encounter during the ratification of the 136 TFEU Treaty amendment?

No significant difficulties were encountered during the approval of the 136 TFEU Treaty amendment. During the discussion at the Congreso, representatives of the political parties with bigger number of seats (PSOE, PP, CiU, PNV) were all unambiguously in favour of the European Council Decision. Only minority groups such as Amaiur (Basque left-wing nationalists)or Izquierda Plural raised some criticism and explicitly stated their discrepancy with the measures proposed for ratification concerning financial stability for the euro-zone.

In their speech in front of the Congress, Basque nationalist-separatist political coalition Amaiur (with 7 seats in the Congreso de los Diputados out of 350) showed their disagreement with the ratification of this Treaty amendment (together with the approval of the ESM). Through their spokesperson in the Congress Mr Larreina Valderrama, Amaiur claimed that the European Union is weak in addressing the response to the crisis by its own “improperly” named European Constitution due to its democratic deficit: “A Europe of States has been mounted to the detriment of a Europe of the citizens, a Europe that gives back to its natural spaces, to their peoples. It is the Europe of the lack of solidarity. It is a Europe prisoner of financial speculators, banking interests, particularly German banking interests. The European Union has given up listening and serving to European citizens, indefinitely extending the democratic deficit that prevents giving voice, power of decision and effective control to the citizens. An example of this self-imposed limitation is the role and functions of the European Central Bank.”[9] Additionally, Mr Joan Josep Nuet i Pujols, for the left-wing political coalition Izquierda Plural (with 11 seats in the Congreso), expressed that the ratification of these mechanisms were in fact ‘emptying out’ the national sovereignty of Spain and that it would mean ‘losing clearly the decision ability to control its economic policy; economic policy that has been decided out of the sovereign parliaments of the various countries that form the Euro-zone and even outside European Parliament, what means giving their back to the citizens in an undemocratic way’.[10] As explained in Question V.3, these declarations were not obstacle for an overwhelming approval of the treaty amendment at the Congreso.

The discussion and ratification did not raise any significant debate. The only speeches given were in favour of the amendment, which was approved almost unanimously.[11]

Case law         
V.4

Is
there a (constitutional) court judgment in Spain on the 136 TFEU Treaty amendment?

There is no constitutional court judgement in Spain on the 136 TFEU treaty amendment. 

Miscellaneous
V.5
What other information is relevant with regard to Spain and the 136 TFEU Treaty amendment?

No other relevant information.

[1]Diario de Sesiones de las Cortes Generales, Comisiones Mixtas para la Unión Europea No. 160, of 9 Dec 2010: http://www.congreso.es/public_oficiales/L9/CORT/DS/CM/CM_160.PDF.

[2] Note that the failed Constitutional Treaty, predecessor of the Lisbon Treaty, was approved by referendum in Spain by a majority of 76.3% of voters with a participation of 42.32% in February 2005 (few months after the French and Dutch negatives).

[3] See Congreso de los Diputados, Plenary Session Report No. 205 of 22 December 2010 http://www.congreso.es/public_oficiales/L9/CONG/DS/PL/PL_216.PDF

[4] Pursuant Article 43(2) of the Congress Regulation, the Congress can command rulings or reports to the different Committees (http://www.congreso.es/portal/page/portal/Congreso/Congreso/Hist_Normas/Norm/reglam_congreso.pdf). While not being obliged to do so, the Congress always requests such a report from the Foreign Affairs Committee before ratifying an international treaty.

[5]Boletín Oficial de las Cortes Generales, Serie A, No. 21, of 2 March 2012:

http://www.congreso.es/public_oficiales/L10/CORT/BOCG/A/CG_A021.PDF.

[6]The treaty amendment and the ESM were discussed at the same parliamentary meeting. Although the discussions addressedthem separately, there was no separate vote for each instrument. Both the ESM and the amendment of Article 136 of the TFEU were voted and approved together (see Diario de Sesiones del Congreso de los Diputados No. 31, of 17 May 2012:

http://www.congreso.es/public_oficiales/L10/CONG/DS/PL/PL_031.PDF).

[7]Diario de Sesiones del Congreso de los Diputados No. 31, of 17 May 2012:

http://www.congreso.es/public_oficiales/L10/CONG/DS/PL/PL_031.PDF.

[8]Cortes Generales, Diario de Sesiones, Senado, No. 21, of 6 June 2012:

http://www.senado.es/legis10/publicaciones/pdf/senado/ds/DS_P_10_21.PDF (pp.1093-1096).

[9]Diario de Sesiones del Congreso de los Diputados No. 31, of 17 May 2012:

http://www.congreso.es/public_oficiales/L10/CONG/DS/PL/PL_031.PDF (pp. 80-81).

[10]Diario de Sesiones del Congreso de los Diputados No. 31, of 17 May 2012:

http://www.congreso.es/public_oficiales/L10/CONG/DS/PL/PL_031.PDF (pp. 81-82).

[11]Cortes Generales, Diario de Sesiones, Senado, No. 21, of 6 June 2012:

http://www.senado.es/legis10/publicaciones/pdf/senado/ds/DS_P_10_21.PDF.